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Response or Comment


Activism in Perspective, 92 Yale Law Journal 1189 (1983)


Professor Mashaw has constructed two models of rights to account for recent developments in American administrative law. I propose to make a few remarks about the "background conditions" of his models in the light of larger shifts in the relationships of law, citizen, and society that characterize our times. Two particular topics are of interest to me. One concerns the nature of the activist state that Professor Mashaw associates with his public law model of rights. The other is the linkage of his public law model not only with a government that assumes managerial tasks, but also with a state apparatus characterized by bureaucratic centralization.

To discuss these themes, I need to place Professor Mashaw's models in a comparative perspective, a perspective that may appear irrelevant to internal American developments. Perhaps some will resent certain implications of expanding the usual framework of reference in talking about the American activist state and the New Deal. But I hope that the scanning of larger horizons will be of some use at least as a rough orientation for internal discourse. As a temporary stay against confusion, even an ignis fatuus may be better than no light at all.

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