Appraising the Progressive State

51 Pages Posted: 6 Feb 2016 Last revised: 21 Jul 2017

See all articles by Herbert Hovenkamp

Herbert Hovenkamp

University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School; University College London

Date Written: 2017


Since it origins in the late nineteenth century, the most salient characteristics of the progressive state have been marginalism in economics, greatly increased use of scientific theory and data in policy making, a commitment to broad participation in both economic and political markets, and a belief that resources are best moved through society by many institutions in addition to traditional markets.. These values have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest vulnerabilities is commonly said to be its susceptibility to special interest capture. The progressive state makes many decisions via either legislation or administrative agencies, and both are thought to be prone to special interest control at the expense of the public. Nevertheless, the superior economic performance of the progressive state calls that conclusion into question. How can a state policy that is so prone to special interest capture also produce superior results?

One severe weakness of the capture argument against the progressive state is that it uses the free market as a baseline for identifying what is in the public interest. Under such a standard, any political theory that believes that market failure is more widespread and in need of correction will generate too many false positives suggesting capture. In fact, special interest capture often explains failures to regulate as much as special interest regulation itself, and today the former dominates the latter on many important issues. Ironically one exacerbating factor in producing such capture is the structural features of the Constitution itself, which place much higher burdens on those seeking to regulate than on those seeking to resist it.

Keywords: legal history, progressivism, political theory, public choice, capture, administrative law

Suggested Citation

Hovenkamp, Herbert, Appraising the Progressive State (2017). Iowa Law Review, Vol. 102, Pg. 1063, 2017, U of Penn, Inst for Law & Econ Research Paper No. 17-31, Available at SSRN: or

Herbert Hovenkamp (Contact Author)

University of Pennsylvania Carey Law School ( email )

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University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
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University College London ( email )

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