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The controversy over administrative law in New York in 1938 was a decisive moment in the emergence of procedural Diceyism in the United States. On a stage crowded with partisan and legal performers, the politics of administrative law played out in two acts. In the first, the state's trial lawyers mounted a campaign to heighten judicial review of the state's administrative agencies. Their efforts culminated in the adoption of the anti-bureaucracy clause at the state constitutional convention when regular factions in the state's two major parties decided it would serve their purposes. New Yorkers rejected the measure after liberal politicians and corporation lawyers cast it as a cynical attempt to hamstring indispensable bureaucracies. The defeat of the anti-bureaucracy clause revealed a lack of popular support for institutional Diceyism, but it was no mandate for administrators to do as they pleased. A second act, the O'Brian-Wagner senatorial race, became a referendum on the partisan use of bureaucracy after O'Brian attacked the NLRB for its structural and procedural irregularities and called for the judicialization of administrative procedure. His surprisingly strong showing made clear the political appeal of procedural Diceyism well before it became federal policy after World War II.


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Publication Citation

27 Law & Hist. Rev. 331-372 (2009)