Mashaw, Jerry L. --- "Explaining Administrative Law: Reflections on Federal Administrative Law in Nineteenth Century America" [2010] ELECD 804; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 2

Section Title: Explaining Administrative Law: Reflections on Federal Administrative Law in Nineteenth Century America

Author(s): Mashaw, Jerry L.

Number of pages: 10

Extract:

2 Explaining administrative law: reflections on
federal administrative law in nineteenth century
America
Jerry L. Mashaw


Historians of administrative law, including several contributors to this volume, address
the same general question: What explains the emergence of a `law of administration' in
its various forms across different nation states? While hardly objecting to alternative
accounts, scholars emphasize a number of different factors.
Bernardo Sordi's chapter stresses particular constitutional and ideological conse-
quences in the historical development of certain leading nations (notably, France,
Germany, and Britain). In Sordi's presentation, these developments do much to explain
the emergence of a specifically public law governing `administrative acts' of the state,
distinguished from the evolving realm of private law, both ancient and modern. John
Ohnesorge, while certainly acknowledging the significance of these national contribu-
tions (notably that of Germany, along with that of the United States), also suggests
the importance of timing or staging of developments in particular economies and in a
nation's political organization and political ideology. Nicholas Parrillo pays particular
attention to pragmatic adjustments in administrative forms that ultimately coalesce
­ or fail to coalesce ­ into a new paradigm of governance that becomes distinctive to
a nation's administrative arrangements. And moving beyond historical perspectives
strictly speaking, Elizabeth McGill and Daniel Ortiz focus on constitutional structure
and critique positive political theory by showing that it cannot explain the prevalence of
active judicial review in Europe's parliamentary systems.
These chapters, plus the discussions at the conference of which they were a ...