Thursday, October 1, 2015

When Omission Matters: Diverse Perspectives on the Legal History of the Administrative State

Last week we noted Mike Konczal's recent essay, "Hail to the Pencil Pusher," which appeared in the Boston Review. Konczal, a fellow at the Roosevelt Institute, admirably synthesizes academic work by Bill Novak, Jerry Mashaw, Dan Ernst, Anuj Desai, Jeremy Kessler, William Eskridge, Jr., John Ferejohn, and Sophia Lee to demonstrate "American bureaucracy's long and useful history." Konczal also explains clearly and concisely why this research ought to matter to the general public. Most notably, in his view, it challenges an alternative history, popular among some contemporary conservatives, in which American bureaucracy is a recent and generally harmful invention.

I was delighted to see someone outside of academia place a spotlight on some of our field's most exciting work. I could say many more good things, both about the essay and the research that informed it. (Read it! All of it!) Instead -- and without appearing ungrateful, I hope -- I am going to use Konczal’s essay to provoke some conversations that I think legal historians should be having. Specifically, I want to talk about omission and gender. Of the authors discussed, only one (Lee) is a woman. Does that matter? If so, why? Review essays needn't be comprehensive, of course, especially in this type of venue, but as I explain after the jump, I think we would do well to at least reflect on gender disparities when we spot them.

To lay some groundwork here, there is no shortage of women writing in this field. Anytime I see “history” and “bureaucracy” in the same sentence, Joanna Grisinger’s important book, The Unwieldy American State (2014), comes to mind. So, too, does Anne Kornhauser’s recent book on twentieth-century liberals’ deep and unresolved anxieties about the administrative state (Debating the American State (2015)). If we're going back to 1996, when Novak's pathbreaking The People's Welfare came out, we might also consider equally pathbreaking work by Lucy Salyer (Laws Harsh as Tigers (1995)), the late Peggy Pascoe (What Comes Naturally (2009), especially the chapter titled “Seeing Like a Racial State”), Kristin Collins (“Administering Marriage” (2009)), Risa Goluboff (The Lost Promise of Civil Rights (2010), especially the parts on Department of Justice lawyers), and Margot Canaday (The Straight State (2011). And, OK, yes, I have also labored in these trenches (although for nowhere near as long as some of the authors I’ve just listed). The point is: these scholars – all women – have given concrete historical content to the idea of government by and through agencies.*

There are probably many reasons why Konczal did not discuss the work I’ve mentioned -- one being that an essay of this nature simply can't include everything -- but there is one possibility that deserves discussion: When writers like Konczal do us the great service of translating our research for wider audiences and broadcasting our findings, do they perhaps unintentionally perpetuate one of academia's most insidious problems? That problem, of course, is the disparate rates at which women authors are cited (and cite themselves) relative to men. (NB: some evidence suggests a different trend in legal scholarship.) Kelly J. Baker, a columnist for Chronicle Vitae, summarizes one study this way:
After controlling for factors including venue, methodology, subject, the author’s institution, and the significance of the publication, Walter and her colleagues discovered that gender mattered even when all other factors were held constant. In fact, gender was one of the best predictors of whether an article would be cited or not. Walter writes that women authors received “0.7 cites for every 1 cite that a male author would receive.” Untenured women were the least likely to be cited.
(The gender pay gap is almost exactly the same size, interestingly: Full-time working women earn 78 cents to their male counterparts' dollar, according to the latest government release on this issue.)

Lest I appear to be pointing fingers, I can report that on one occasion, a reader of this blog asked me, personally, to be more thoughtful in this regard. (In rounding up work on historians and the Obergefell decision, I had mentioned the majority opinion's citation to Dirk Hartog's work but not to the important work of two women historians, Nancy Cott and Stephanie Coontz.) I was mortified - and chastened. We at the Legal History Blog tend to think of ourselves as mere conduits of information, but we do make choices, and those choices should not go unexamined.

When we become more attuned to this citation dynamic, what happens? I took a minute to ponder what Konczal’s essay would have looked like had he included some of the authors I mentioned. As it stands, here's the main takeaway: "This scholarship does more than just show how far back the administrative state goes in American history," Konczal writes. It also undermines the idea, popular among present-day conservatives, that bureaucracy necessarily threatens freedom. "[T]he practices and institutions of bureaucrats have not assaulted our Constitutional liberties," Konczal summarizes, "but rather have helped define and expand our very notion of liberty." It's hard to overstate the importance of this point. Absent from the essay, however, is much engagement with race, class, gender, and other categories of difference. This is ironic. In 2010, when Sophia Lee broke open the field of "administrative constitutionalism," it was with an article titled "Race, Sex, and Rulemaking." A version of Konczal’s essay that incorporated the authors I’ve noted would necessarily include the experiences of women, African Americans, American Indians, non-white immigrants, homosexuals, and the poor. When such actors enter the picture, I suspect, his conclusions about the liberating nature of administrative governance would have to become more nuanced. As I have written elsewhere, “the modern American state wielded and consolidated power through regulation, and it regulated unequally.” If administrative agencies were in some contexts anxious to preserve and expand individual liberty, in other contexts they pioneered technologies of constraint, surveillance, and exclusion.

Does recognizing this more complicated history give fodder to today’s anti-government conservatives, the implied target of Konczal’s essay? Perhaps. But not recognizing this history may be more dangerous, for it ignores the government’s complicity in creating present-day inequalities and may thereby undermine calls for the kind of government that deserves Americans' support.

I'll end my musings here -- with an invitation to readers to chime in, and with a promise to develop my own thoughts further. I was recently invited to contribute to a collection on administrative constitutionalism (edited by Columbia Law School's Jeremy Kessler and Gillian Metzger), and I think I have my topic!

*This list is not meant to be exhaustive, but I would love to craft a list that is, and to include scholarship on this topic by both men and women. Contact me via email, twitter, or the comments section (below) if you have ideas.