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2017 Jotwell: J. Things We Like 1 (2017)
The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law

handle is hein.journals/jotwell2017 and id is 410 raw text is: Legal History The Journal of Things We Like (Lots) http://Iegalhist.jotwell.com The History of the Administrative Petition: Dispatches from the Lost World of Administrative Law Author : Karen Tani Date : September 11, 2017 Daniel Carpenter, On the Emergence of the Administrative Petition: Innovations in Nineteenth-Century Indigenous North America, in Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw 349 (Nicholas R. Parrillo ed., 2017). #DearBetsy, tweeted civil rights activist Alexandra Brodsky on July 6, 2017, Rescinding Title IX guidance moves us backwards when we desperately need progress in ending campus sexual violence. The hashtag linked the message to many others, including personal accounts of sexual assault and also (contrary to original intentions) demands for greater protections for the accused. All these missives are aimed directly at Secretary of Education Betsy DeVos.1 And they are fascinating, for they suggest a regulatory landscape different from the one we teach in law school-a landscape in which savvy use of social media may be as important as the Administrative Procedure Act and in which people who lack conventional markers of influence demand the ear of top administrators. Fortunately, we have an excellent resource for understanding this landscape: a crop of historical work on petitions to government administrators. A particularly enlightening example is political scientist Daniel Carpenter's contribution to Administrative Law from the Inside Out, On the Emergence of the Administrative Petition. My first encounter with this vein of research was legal historian Kristin Collins' work on military widows and their petitions for public pensions in the nineteenth century.2 More recently, through a draft article by legal scholar Maggie McKinley, I learned of the North American Petitions Project, a collaborative effort to digitize hundreds of thousands of petitions to government officials between the colonial era and the mid-twentieth century. McKinley uses this data to tell a story about petitioning Congress and how such activity helped give rise to the modern administrative state.a By contrast, Carpenter-who is a co-principal investigator on the North American Petitions Project and has been at the forefront of digitization efforts-starts this particular chapter in the administrative realm. Drawing on original archival research, as well as on the work of historians Tiya Miles, Laurence Hauptman, and others, Carpenter reminds legal scholars that well before the formation of the Interstate Commerce Commission and other modern regulatory bodies, thousands upon thousands of groups, organizations, and individuals petitioned administrative agencies both formally and informally. (P. 350.) Carpenter then digs into a striking feature of this early body of petitions: indigenous North Americans petitioned administrative agencies as much or more than any other population. (P. 351.) Carpenter identifies several factors that contributed to Native Americans'A early and robust use of the administrative petition. One factor was a pattern of congressional deference to the President in matters relating to Indian policy. Presidents, in turn, delegated great power to administrators within the War Department and, later, the Department of the Interior. A second important factor was that these administrators had no intention of leaving Native Americans alone, but rather embarked on prolonged campaigns of dispossession and subordination. In other words, Native Americans had every reason to want to influence administrative decisionmaking. A third factor, Carpenter argues, was a tradition of complaint and supplication among indigenous North Americans that was already well established by the time of the Founding. (P. 358.) According to this tradition, all types of authority (i.e., administrators as well as legislators) were appropriate subjects of entreaty. I could go on about Carpenter's fascinating examples, but what I find even more compelling is how Carpenter addresses the so what question. He offers several answers, generally phrased as possibilities that merit more research. First, we should care about Native American petitions because sometimes they worked-that is, sometimes they resulted in administrative decisions or accommodations that reflected the petitioner's preferences. Carpenter 1/2

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