BOOK REVIEW: The Wrath of Roth. Due Process in the Administrative State. By Jerry L. Mashaw. * Skip over navigation
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Copyright 1985 Yale Law Journal Company.

Yale Law Journal

BOOK REVIEW: The Wrath of Roth.

Due Process in the Administrative State. By Jerry L. Mashaw. *

New Haven: Yale University Press, 1985. Pp. 271. $ 24.00.

* William Nelson Cromwell Professor of Law, Yale University.

May, 1985

Yale Law Journal

94 Yale L.J. 1529


Colin S. Diver +


Did we really once believe that Goldberg v. Kelly 1 was the opening volley in due process "revolution"? 2 We may be forgiven the sense of mild embarrassment that accompanies such memories. Of course, we know better now. There was no revolution -- or at least not the one expected. The bureaucracy was not radically humanized; the administrative state was not shaken to its foundations. Bathed in the harsh glare of hindsight, Goldberg itself looks different now. Where once we saw a stirring manifesto for procedural justice, now we see a prefiguring of the coming retrenchment. In the Court's recognition of welfare recipients' "statutory entitlement" 3 we see the seeds of Roth's 4 "entitlement trigger." 5 In the Court's sympathetic "weighing" of the recipient's interest against the government's, 6 we see the germ of Eldridge's 7 austere "social-cost accounting." 8

Was there some implacable logic that transformed the generous constitutionalism of Golbberg into the niggardly positivism of Roth and Eldridge? Were we betrayed by a changing Court or by our own false reading of its portents? These questions have set the research agenda for a generation of scholars. Foremost among them has been Professor Jerry Mashaw, whose prodigious output 9 has gradually laid bare the deep paradoxes and contradictions lurking beneath the once-placid 10 countenance of procedural due process.

Mashaw's long journey has reached a culmination with the publication of a major book entitled Due Process and the Administrative State. 11
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