E-mail:
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Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
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Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
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Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
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Richard Primus raprimus at umich.edu
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Alice Ristroph alice.ristroph at shu.edu
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Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
For most historians of law, the history of administration in
the United States is normatively significant to explain how we have arrived at
our current doctrinal moment. This history begins with the creation of the
Interstate Commerce Commission (1887), develops through the rise of the Federal
Trade Commission (1914), burgeons during the New Deal and its ‘alphabet soup’
of new regulatory agencies, rationalizes under the Administrative Procedure Act
(1946), and peaks with modern case law such as the Chevron decision (1984).
Political scientists and policy historians have also
lavished a great deal of attention on the history of administration in the
twentieth-century United States. A vocal
minority, however, have coalesced around a more foundational inquiry: how did
the modern state become a viable, functional, and—most importantly—legitimate entity? A diverse group of scholars from law schools
and political science and history departments, including Daniel Carpenter,
Richard John, William Novak, Elisabeth Clemens, Stephen Skowronek, Richard
Bensel, Bruce Ackerman, and William Nelson, offer a great many answers to this
question.
Amazingly, though, neither the historians probing backward
in time, nor the administrative lawyers racing to the present, spilled much of
any ink on the basic problem of officeholders’ compensation. After all, the formidable leviathan that came
into existence through the great decisions filling casebooks, and through the
epochal historical processes documented in scholarly monographs, was formidable
only because of the people who constituted it.
The state reached into people’s lives only because the state’s employees
physically did so. The state, in other
words, was not self-executing, but, rather, contingent upon the execution of
its employees. The state is human. And in the western world, those people in the
employ of the state have received compensation for their services. How did these compensation systems work? What does their organization and function
tell us about the historical eras in which they were conceived? How did they change over time? What do they teach us about our own
organization of statist labor? These are
grand questions of obvious importance that receive detailed, dazzling answers
in Parrillo’s remarkable book.
I won’t rehearse Parrillo’s argument here (but recommend
Reihan Salam’s brief and laudatory summary in the National Review). Instead, I
want to highlight a few observations about the book that stem from my own
confrontation with several topics at the heart of Parrillo’s book. Since 2005, first as a doctoral student at
the University of Chicago, and then as an assistant professor of history at Rutgers-Newark/NJIT
and now American University, I have been writing a history of federal customs
administration from the founding of the United States to the Jackson era (the
book is now under contract with the University of Chicago Press). My argument is that capitalism gave the early
state legitimacy until the War of 1812, when capitalism appeared to have
captured and corrupted the state. To
disentangle the state from the clutches of the marketplace, jurists, politicians
and administrators began to centralize administrative law. The interplay with Parrillo’s book is
obvious: we are both fascinated by the basic questions of (1) how Americans
literally built the foundations of the modern state, and (2) how Americans
managed the twin revolutions of the state and the marketplace in the
nineteenth-century.
Writing about how governmental systems came to be and came
to function requires an eye for detail, and Parrillo is an empiricist of great
skill. There are almost 200 pages of
notes, chock full of hundreds (probably more, actually) of primary sources
drawn from hearings, cases, manuscript documents, agency papers, and
others. He has culled data from hundreds
(probably more, actually) of monographs and law review articles about
administration. As a piece of research, Against the Profit Motive is an
astounding accomplishment. I should
know, because I have tried to make sense a good number of the sources Parrillo
has mastered, but with less success, for I have been unable to impose the order
and analytical clarity that leaps from the pages of this book. I often ask my students to question why a
novel scholarly claim is novel. That is,
why have scores of scholars ignored this topic, or missed this particular
approach? The answers usually have to do
with prevailing scholarly winds or historians’ preoccupation with explaining
how Ronald Reagan won the blue-collar vote.
In Parrillo’s case, the answer is far simpler: it was too hard. To do the kind of research Parrillo has done,
and to pull it together in the elegant argument he has weaved, requires
exceptional patience, focus, and organization, to say nothing of wit and
intelligence.
I have long had a sense that Parrillo’s research would reap
enormous scholarly rewards. I first
heard of Parrillo from mutual acquaintances at Yale Law School who reported of
a determined man, surrounded at all times by stacks of volumes of the Statutes at Large, holed up in the
Goldman Law Library. Parrillo also
preceded me by a year as a Samuel I. Golieb Fellow of Legal History at New York
University School of Law, where early drafts of chapters of Against the Profit Motive received high
praise from a notoriously tough crowd (it has been called ‘legal history
bootcamp’). Above all, Parrillo was
praised for aggregating and making comprehensible a mass of complex
information. When my turns came before
the Legal History Colloquium, I found seminarians remarkably well-schooled in
early federal administrative procedure. (It
was at this moment that I also became eternally grateful to Parrillo because,
in writing the history of compensation systems for customs officials, Parrillo
exonerated me from the burden of figuring out a horribly messy story that had
confounded me for years.)
But Parrillo is not all hedgehog, for my favorite part of
this book is its clever twist on the essential functionalist premise of the
legal history of administration. Indeed,
rather than asking how capitalism made necessary regulation, Parrillo seems to
ponder how capitalism changed the nature and character of the state. He is a bit coy on this point, but if I read
him right, he is suggesting the beginnings of our current intellectual paradox
in demanding that government be run ‘like a business’ but without profiting
‘like a business.’ I only wish he would
have sharpened this sentiment that runs throughout the book, into a more
decisive argument, for then he would have succeeded in teaching valuable
lessons, not only to area specialists like me, and to the many legal historians
and legal scholars who will read this book, but to the public at large—and
especially my neighbors on Capital Hill.
Gautham Rao is an
Assistant Professor of History at American University. He can be reached at grao@american.edu.