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Jerry L. Mashaw’s magisterial account of the first one hundred years of Administrative law sharply distinguishes between internal and external administrative law – between those contributions to the regularity and legality of agency behavior that emerge from its own institutions and practices, and the constraints imposed by external actors – legislative, executive, and judicial. The “systems of internal control and audit” he found common to nineteenth-century governance are subordinated, if not suppressed in today’s thinking about administrative law.

In our world of multiple transsubstantive statutes and ubiquitous judicial review, we tend to think of our administrative constitution as a set of external constraints upon agencies. We then relentlessly analyze these external constraints as if they were the major determinants of agency efficacy, procedural fairness and legal legitimacy. Yet, in many ways it is the internal law of administration – the memoranda, guidelines, circulars and customs within agencies that most powerfully mold the behavior of administrative officials.

A public law curriculum true to these realities would permit students to encounter administrative law in just this way, as administrative actors and the public dealing with them do. It would engage them directly with their materials, require them to “see” the relationships within agencies, and between them and legislatures or central executives, just as the people in the agencies and those bodies do. It would not ask them, to the virtual exclusion of other perspectives, to encounter these matters just through the eyes of reviewing courts, or in relation to what the judiciary might command. Reflecting an extraordinary body of scholarship that has consistently plumbed these realities, the very first teaching materials Jerry L. Mashaw edited provided just such encounters for his students. Not “Judicial Control of Administrative Action,” but getting inside administration, has been the hallmark of his career from its beginning to the present day.

This, and the recent growth of required courses on Legislation and Regulation, that might do the same, suggested the possible interest of an essay exploring the extent to which American law students, through the years, might encounter legislatures and agencies other than through the eyes of the possibly censorious, and inevitably retrospective and incidental-litigation-oriented courts.

To what extent have American law students been invited to view legislatures and agencies, as institutions and through their work, through other than judicial eyes? Even today, the law school curriculum endlessly invites attention to courts and the means by which they settle (that is to say, make) law. Well over a century ago, the innovative methods of Harvard’s Christopher Columbus Langdell treated law as a science whose raw materials were appellate judicial decisions, and naught else. Has the Langdellian imperative to use only cases as the primary materials of law study prevailed in the study of legislatures and agencies, as well? Do the materials of these courses invite direct attention to these other institutions and their ways, before which lawyers may so often have to appear? Or do legislatures and agencies appear primarily through the eyes of judges in decided cases, looking backwards over some particular, completed piece of work?


Law | Legal Education | Public Law and Legal Theory


This material has been published in "Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw", edited by Nicholas R. Parillo. This version is free to view and download for private research and study only. Not for re-distribution or re-use.