Document Type


Publication Date

Spring 2005


The practice, teaching, and study of modern administrative law have developed in the midst of academic debates over how to resolve conflicts between a dominant set of legal doctrines and external political demands. Periodic administrative legitimacy crises have spawned an academic literature consisting of authoritative, influential articles and books that attempt to clarify nascent doctrines and theories. The now-familiar rhythm of such outbursts began with modern administrative law's widespread emergence in the 1930s, when federal regulatory agencies became sufficiently prevalent to warrant extensive attention from legal academics. Administrative law histories have established this fairly well-known story: academics sympathetic to the Roosevelt Administration, including, most prominently, Felix Frankfurter and the young professors who had taken his classes at Harvard Law School, provided the theoretical and doctrinal bases for the Administration's efforts to address the vast economic and social crises wrought by the Depression. In doing so, this first generation of scholars launched administrative law as a basic part of the law school curriculum and a popular subject of academic legal research. More important, they put in place a particular ideological and conceptual approach to the subject, one that continues to shape the theory and practice of administrativelaw today. For first-generation administrative law scholars, the correct legal and administrative processes and structure would lead inexorably to superior law and policies. Their presumptions about both the peculiar competencies of administrative agencies and the limited but still important role of judicial review of agency action continue to underpin the conceptual dimensions of the field and the logic of legal doctrine.

These scholars faced opposition in their own time, most famously from elite members of the legal community who -- hoping to protect their clients, their status and business, and/or their legal culture -- sought to challenge the political and legal legitimacy of new and expanded federal regulatory programs. But they also faced a critique from an unlikely source within the legal academy: Thurman Arnold, a Yale Law School faculty member associated with the legal realists. Like the first generation of administrative law scholars, Arnold was an advocate of federal regulation (especially that introduced as part of the New Deal), but unlike his contemporaries at Harvard, he was deeply suspicious of comprehensive solutions based on structural and procedural systems. His brief but evocative writings on the subject represent a singular effort to bring realism's insights to the judicial review of federal administrative agencies. Arnold argued that society is shaped by a deep-seated desire for stable and authoritative legal and political symbols, and he proposed an eclectic mix of creative means to enable the growth of an administrative state that would be sufficiently free of legal constraints to attack what he considered the root causes of the Depression.