Administrative law aficionados often find themselves asking existential questions. Should administrative lawyers focus on judicial review – the control by the ordinary courts of administrative action – or should they focus on the internal workings of the administration? Those interested in asking this question will profit greatly from this edited collection, designed to celebrate the career and work of Jerry L. Mashaw, and featuring 19 substantial contributions from leading American administrative lawyers.
As his Yale Law School colleague Nicholas Parrillo illustrates in an excellent introductory essay, over five decades of scholarly endeavour Mashaw has squarely confronted such existential questions. Notwithstanding his status as a “consummate insider”, Mashaw has long argued that many of the premises of administrative law scholarship are “misconceived” – hence the reference to “Inside Out” in the title.
The contributions are grouped into six parts reflecting the themes of Mashaw's academic writings. I will focus on one contribution from each of the parts, with a view to whetting the appetite of readers of this review, generally those contributions with most relevance to a Commonwealth audience. In Part I, “The Internal Law of Administration”, the subject is Mashaw's arguments about the importance of self-generation of norms by administrative decision-makers and the relative inability of courts to assist in this process (e.g. Due Process in the Administrative State (1985)). In his contribution, Peter L. Strauss reflects on the public law curriculum in the US, a topic of interest to the UK where curricular reform is being stimulated by changes to the qualification process for solicitors. Despite Mashaw's success in highlighting the importance of internal decision-making norms, American administrative law teaching is still devoted to judicial review of administrative action, an orientation partly attributable to American law schools’ insistence on the Socratic method of pedagogy based on the study of appellate court opinions. In recent years, many institutions have introduced first-year courses on the ins and outs of the legislative and regulatory process – evidence of change, but “the doctrinal and judicial orientation of these courses remains strong”.
A Commonwealth reader might be inclined to skip over Part II, “Internal Law and the President” (though the theatrics of the present incumbent of the White House might give him or her more pause than in previous eras), but would be ill advised to do so. Gillian E. Metzger and Kevin Stack, members of a younger generation of American administrative lawyers, describe “the critical role internal controls played in achieving agency regularity and accountability” at the time of the adoption of the Administrative Procedure Act in 1946. Over the years, however, judges have drawn “more aspects of internal agency life and systems of accountability into their purview”, as have successive occupants of the presidency. Metzger and Stack do not condemn these developments, positing instead that a major challenge for the current and future generations of scholars will be to devise frameworks that allow internal administrative law to thrive. Readers in Britain would benefit from careful reflection on this contribution, bearing in mind how the bare-bones procedures of the Statutory Instruments Act 1946 are frequently supplemented by bespoke scrutiny mechanisms, how departmental adjudication has been supplanted by the Tribunals, Courts and Enforcement Act 2007, how judges have been aggressive in formulating new doctrines for control of administration in recent decades, and how political power has increasingly been centralised in 10 Downing Street. The internal/external dynamic described by Metzger and Stack might be a useful heuristic device for a British public lawyer.
Part III, on “Adjudication and Divergent Models of Justice”, contains a notable contribution by Robert A. Kagan, which builds on the influential distinction Mashaw set out in Bureaucratic Justice: Managing Social Security Disability Claims (1983) between three different normative models of administrative decision-making, running from Weberian “bureaucratic rationality” to “professional treatment” and onwards to contextual “moral judgment” by independent officials. Kagan's analysis adds a “two-dimensional space” based on “(1) the density of controlling legal rules; and (2) the degree to which the fact-finding and decision-making process is hierarchically controlled”. This allows Kagan to systematise agency decision-making processes into those involving “expert/political judgement”, “bureaucratic legalism”, “adversarial legalism” and “negotiation/mediation”. He recognises that these are ideal types which real-world processes will only ever approximate, not replicate, and also that most agencies “employ a sequenced mix of modes of administrative decision-making”. Kagan's new typology facilitates thinking about administrative justice, an issue of pressing importance in all developed legal systems.
Entitled “The Agency and Its External Environment”, Part IV takes its inspiration from Mashaw's famous study, with David L. Harsft, of the enactment and aftermath of the Motor Vehicle Safety Act: The Struggle for Auto Safety (1990) was an in-depth account of the political, legal and administrative struggles of advocates for safer automobiles, a rich empirical work on the embattled National Highway Traffic Safety Administration. In his contribution, Richard J. Pierce, Jr., builds on Mashaw and Harsft's scholarship to compare the “cultures and performance” of the Agency with those of a nineteenth-century agency, the Board of Supervising Inspectors of 1852. As a long-time critic of the “ossification” of federal administrative action caused by judicial interpretation of the Administrative Procedure Act, it is no surprise that Pierce's comparative historical analysis leads him to condemn the “high cost” of the twentieth century's “judicially mandated procedures”. Pierce's contribution will appeal to public lawyers who are sceptical of aggressive judicial review of administrative action and perhaps inspire the empirically minded to engage in on-the-ground analysis of public administration, perhaps from an historical perspective.
The subject of Part V, “Remapping the Administrative State's Development”, is Mashaw's more recent work on the history of the administrative state. His Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law (2012) is an historical inquiry but one with contemporary relevance, as it counters the narrative, popular amongst American lawyers of a conservative bent, that a lawless administrative leviathan created in the late nineteenth century and unleashed by the New Deal now stalks the land, terrorising the citizenry and trampling on the separation of powers (e.g. Hamburger, The Administrative Threat (2017)). In fact, Mashaw demonstrated, American administration has a long history, one in which administrative decision-makers have long been keen to develop norms of appropriate conduct. Daniel Carpenter's contribution focuses on the use of administrative petitions by Native American groups in the early American republic, describing how the practice “formed a multigeographical, multilingual, multiple-venue process of solicitation, lobbying, and coalition-building that often proved remarkably effective”. This is administrative law as social history, or even sociology, and will be of interest to readers in jurisdictions where reconciliation with indigenous peoples is high on the political and legal agenda.
Finally, Part VI, “‘The Agency’ as More than a Black Box”, addresses Mashaw's well-founded scepticism of the proposition that individual administrative agencies function in watertight compartments, sealed off from other agencies, local government and private actors. Richard B. Stewart's contribution on global regulatory cooperation is especially noteworthy in the current fragile geopolitical and economic climate. Stewart's study of recent trade initiatives leads him to conclude that states engaged or engaging in international agreements “must surrender greater or less control over regulatory programs to other states through international trade and regulatory organizations, intergovernmental regulatory networks, or various bilateral arrangements”. In the jargon of global administrative law, “steps by principals to strengthen their regulatory capacities generate correlative increases in agency costs”, which causes problems at the national and global levels as states’ priorities diverge from those of the institutions they empower. This may be uncomfortable reading for those who think Britain is about to “take back control” of its sovereignty by embarking on a new round of trade negotiations, but Stewart emphasises that the internal administrative law so beloved of Mashaw can be put to the laudable end of promoting “a democratic element in regulatory decision making and [securing] rule of law values”.
In his concluding comment, Mashaw makes two arguments to which administrative lawyers across the world should turn an attentive ear. First, he argues for “a more granular, neo-Realist approach to how law works in practice and for the building of theoretical hypotheses from fine-grained empirical investigation”. Second, however, he cautions against over-reliance on quantitative empirical methodology, arguing instead for a qualitative approach pursuant to which “we must also look inside at agency methods, explanations, procedures, and organizational arrangements”. Much like the body of work it celebrates, this excellent volume suggests that administrative lawyers should pay close attention to the internal workings of administrative decision-making processes.
