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The American social welfare system is evolving away from the framework established by the New Deal and elaborated during the civil rights era. It is becoming less focused on income maintenance and more on capacitation. Benefits thus more often take the form of services. Such benefits are necessarily less standardized and stable than monetary ones. Their design is more individualized and provisional. The new trends favor different organizational forms, and they imply a different ideal of procedural fairness.

Jerry L. Mashaw’s work of the 1970s and 1980s provided the deepest and most comprehensive analysis of the New Deal regime from the point of view of legal accountability. He developed a general interpretation that incorporated both the New Deal focus on internal administration and the civil-rights-era preoccupation with adjudication and courts. And he applied this conception in detailed studies of what has proven one of the regime’s most intractable components – the Social Security disability programs – in ways that both confirmed it and candidly revealed its limitations.

In this essay, we consider how key trends of recent decades fit with Mashaw’s analysis. In some respects, they represent a vindication of Mashaw’s aspiration to accommodate procedural fairness and organizational efficacy. In others, they require substantial modification of his account of the administrative state. Notably, the tension or trade-off between bureaucratic rationality and individualized decision-making that preoccupies much of Mashaw’s analysis is mitigated in novel ways in the newer programs. The new programs depend on the tailoring of services to the individual circumstances of the beneficiary. Because they require information and cooperation from the beneficiary, they must involve him or her in the design of the intervention. Yet, at the same time, these programs aspire to use technology and managerial techniques to hold frontline agents accountable in ways different from those Mashaw contemplated. Mashaw thought of accountability partly in terms of fidelity to hierarchically specified instructions – what he called “accuracy.” However, this ideal does not fit organizational programs that need to encourage and learn from frontline initiative and creativity. Such post-bureaucratic programs understand accountability in terms of both the frontline agent’s ability to give a reasonable and articulate explanation of her actions and of continuing assessment of the effects of these actions.


Administrative Law | Law | Social Welfare Law


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. Parrillo. This version is free to view and download for private research and study only. Not for re-distribution or re-use.