Writing for JOTWELL's Legal History Section,
Kunal Parker (University of Miami School of Law) has posted an admiring
review of
Tocqueville's Nightmare, by my co-blogger
Daniel R. Ernst (Georgetown University Law Center). Here's the first paragraph:
Daniel Ernst’s book, Tocqueville’s Nightmare: The Administrative State in America,
is a significant addition to the growing literature on the history of
the administrative state. However, it also compels a rethinking of the
received historiography of twentieth century American legal thought. It
is to the latter contribution that I will devote this brief review.
Here's a bit more:
We often tell the history of American legal thought in the first half
of the twentieth century as a history of the retreat of “law” before
the advance of democratic “politics.” The New Deal, accompanied by the
U.S. Supreme Court’s decision to rethink its position in Lochner,
represents the triumph of democratic “politics,” the displacement of
law generated by a common lawyerly judiciary by law generated by
legislatures and the administrative agencies they created.
Ernst’s book complicates this story considerably. If one follows the
implications of his account, the story of the contest between “law” and
democratic “politics” in the first half of the twentieth century is not
any simple story of the retreat of “law” before the forces of
democratic “politics.” It is instead a story of how “law,” by giving up
its ability to check democratic “politics” on substantive grounds,
instead suffused democratic “politics”—one important locus of which was
the new administrative state—by becoming procedure. Through his
study of politics of the early twentieth century administrative state,
Ernst thus gives us rich substantive account of one important site of
the changing career of “law” in relationship to democratic “politics,”
of its emerging ontology as procedure.
Read on
here.
