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From the perspective of American legal history, one of the most important and lasting themes in the work of Jerry L. Mashaw is his definitive establishment of the long and deep historical origins of American administrative law and the administrative state. Mashaw's remarkable charting of “The Lost One Hundred Years of American Administrative Law” is a monumental achievement that forever alters the established chronology and history of the administrative regulatory state in the USA. Through his emphasis on what Bruce Wyman dubbed the “internal law” of administration, Mashaw identified a new route into a previously undiscovered (or at least underacknowledged) history of American administrative action and law a century before the so-called invention of modern administration in the 1887 Interstate Commerce Act.Footnote1 Together with the subsequent work of his colleague Nick Parrillo, Mashaw now provides us with an entirely new canvas for rethinking the whole history of the administrative state.Footnote2 The American state was not “weak” or “laggard” or “underdeveloped” or “absent” before 1887. And the arrival of sophisticated techniques of administration and complicated administrative legal problems and doctrines certainly did not await the formation of the Interstate Commerce Commission.

So we now have a new and “long” history of administrative law to contemplate from 1787 to 1887 and beyond. But some important questions and interpretive problems remain. Among the most significant is charting the exact relationship between the sprawling early regime of administrative regulation that Mashaw heroically uncovers to the later transformations in administration and regulation that took place at the turn of the twentieth century. Are these regimes of a piece – similar, contiguous, and continuous – reflective of an evolution rather than a revolution? Or are there still some dramatic differences and changes circa 1887 that suggest not a move from absence to presence (Mashaw has certainly slain that beast), but perhaps a transformation nonetheless? Nick Parrillo's account of a “salary revolution” – a transformation in personnel, professionalism, and basic government–citizen relations – at the very center of this new, long history of administration is an excellent example of the next stage of inquiry. This essay suggests another potential transformation for further historical investigation – i.e., the very transformation in the nature of “the public” and the general idea of regulation in “the public interest.” At the center of that history stands the law of public utility.


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