Law and State, 1920-2000

Posted: 7 Dec 2004 Last revised: 5 Jan 2009

See all articles by Daniel R. Ernst

Daniel R. Ernst

Georgetown University Law Center


This essay is a synoptic account of the legal history of the administrative state in twentieth-century America. The century saw three cycles in which the creation of administrative structures was followed by their consolidation into durable political "regimes." Each cycle saw innovations in five broad categories of administration: command-and-control regulation, social insurance and provision, fiscal management, state capitalism, and social police. In the state-building phase of each cycle, the emergence of new bureaucracies disrupted an existing political regime by empowering marginal or excluded groups. After the state-building impulse dissipated, the recently empowered and previously dominant actors reached an accommodation. The bureaucracies became part of a new regime, which, for a time, allocated resources, identified feasible goals, and framed ideologies for politically active Americans.

In the first, "Progressive" cycle, administration was consolidated into a political regime in which courts and localistic, bottom-up, patronage-dispensing political parties remained dominant. The Great Depression and World War II provided the impetus for state-building in a second, "New Deal" cycle. It made autonomous bureaucracies a regular feature of the federal government and a vehicle for president-oriented politicians. Social ferment - civil rights, antipoverty campaigns, the consumer and environmental movements - set off the third, "Public Interest" cycle, in which bureaucracies were opened up to previously unorganized populations and new bureaucracies were created to address recently perceived needs. During the 1980s and 1990s, consolidators of the Public Interest regime argued that administration itself was inconsistent with the United States' exceptional place in world history, even as they profited from its expansion in the form of tax policy and government contracts. Administration remained a vast terrain of American governance at the century's end. It could not have been abolished without abolishing politics itself.

The essay is largely unfootnoted. A bibliographic essay lists the works consulted.

Suggested Citation

Ernst, Daniel R., Law and State, 1920-2000. Georgetown Public Law Research Paper No. 599945, Available at SSRN:

Daniel R. Ernst (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics