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Publication Types
Categories
Adrian Vermeule, The Constitution of Risk (Cambridge Univ. Press 2014).
Categories:
Constitutional Law
Type: Book
Abstract
"The Constitution of Risk is the first book to combine constitutional theory with the theory of risk regulation. The book argues that constitutional rulemaking is best understood as a means of managing political risks. Constitutional law structures and regulates the risks that arise in and from political life, such as an executive coup or military putsch, political abuse of ideological or ethnic minorities, or corrupt self-dealing by officials. The book claims that the best way to manage political risks is an approach it calls "optimizing constitutionalism" - in contrast to the worst-case thinking that underpins "precautionary constitutionalism," a mainstay of liberal constitutional theory. Drawing on a broad range of disciplines such as decision theory, game theory, welfare economics, political science, and psychology, this book advocates constitutional rulemaking undertaken in a spirit of welfare maximization, and offers a corrective to the pervasive and frequently irrational attitude of distrust of official power that is so prominent in American constitutional history and discourse" -- Provided by publisher.
Eric A. Posner & Adrian Vermeule, The Executive Unbound After the Madisonian Republic (Oxford Univ. Press 2011).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Book
Abstract
Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done? The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers. But there is nothing in our system of checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority straight through to the Obama presidency. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.
Adrian Vermeule, The System of the Constitution (Oxford Univ. Press 2011).
Categories:
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Law & Political Theory
Type: Book
Abstract
A constitutional order is a system of systems. It is an aggregate of interacting institutions, which are themselves aggregates of interacting individuals. In The System of the Constitution, Adrian Vermeule analyzes constitutionalism through the lens of systems theory, originally developed in biology, computer science, political science and other disciplines. Systems theory illuminates both the structural constitution and constitutional judging, and reveals that standard views and claims about constitutional theory commit fallacies of aggregation and are thus invalid. By contrast, Vermeule explains and illustrates an approach to constitutionalism that considers the systemic interactions of legal and political institutions and of the individuals who act within them.
Adrian Vermeule, Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State, 130 Harv. L. Rev. (forthcoming 2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Separation of Powers
Type: Article
Abstract
What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.
N.W. Barber & Adrian Vermeule, The Exceptional Role of Courts in the Constitutional Order, 92 Notre Dame L. Rev. 817 (2017).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Judges & Jurisprudence
,
Separation of Powers
,
Comparative Law
Type: Article
Abstract
We examine exceptional cases in which judges are called upon to pass judgment on the constitution itself. There are three groups of cases. First, in exceptional cases the validity of the constitution and the legal order is thrown into dispute. The court is asked to rule on the legitimacy of the constitution and, by derivation, on the standing of the court and the legal authority of the judge. Second, on some occasions the judge is asked to rule on the transition from one constitutional order to another. This can occur in the aftermath of a revolution, or when the state is acceding to a new constitutional order. Third, there are some cases in which the health of the constitutional order requires the judge to act not merely beyond the law, as it were, but actually contrary to the law. The judge must act contrary to the rules of the legal order, precisely in order to preserve the health of the legal order. We claim that "constitutional decisionism" is inevitable in all three groups of cases. Courts sometimes have no option but to take it upon themselves to rule upon, and indeed to participate in constituting, the validity of the very constitutional order that gives them their authority, in a kind of bootstrapping.
Adrian Vermeule, Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard Univ. Press 2016).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Politics & Political Theory
,
Administrative Law & Agencies
Type: Book
Abstract
Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons. In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action. As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.
Eric A. Posner & Adrian Vermeule, The Votes of Other Judges, 105 Geo. L.J. 159 (2016).
Categories:
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
Judges on a multimember court might vote in two different ways. In the first, judges behave solipsistically, imagining themselves to be the sole judge on the court, in the style of Ronald Dworkin’s mythical Judge Hercules. On this model, judges base their votes solely on the information contained in the legal sources before them – statutes, regulations, precedents and the like – and the arguments of advocates. In the second model, judges vote interdependently; they take into account not only the legal sources and arguments, but also the information contained in the votes of other judges, based on the same sources and arguments. What does the law say about these two models? May judges take into account the votes of colleagues when deciding how to vote themselves? Should they do so? Are there even conditions under which judges must do so? To date, the law has no general theory about how to approach interdependent voting. Each setting is taken on its own terms, and judges muddle through. The problem is that some judges muddle in one direction, some in another, without any consistent approach, either across judges, or across settings. We argue for a presumption that judges not only may but should consider the votes of other judges as relevant evidence or information, unless special circumstances obtain that make the systemic costs of doing so clearly greater than the benefits. Our view is not absolutist; we do not say that judges should always and everywhere consider the votes of other judges. Under certain conditions, it may be better for decisionmakers not to attempt to consider all available information, and we will attempt to indicate what those conditions might be, in this domain. But we will argue that such conditions should not casually be assumed to exist. Interdependence should be the norm, and solipsism the exception, so that unless judges have good reason to do otherwise they should take into account the information contained in other judges’ votes. Our central case is an extended fugue on Chevron-related examples and variants, but we also consider qualified immunity, new rules in habeas corpus, mandamus, and the rule of lenity.
Adrian Vermeule, Encino is Banal, Yale J. on Reg.: Notice & Comment (June 23, 2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Other
Adrian Vermeule, The Third Bound, 164 U. Pa. L. Rev. 1949 (2016).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
Supreme Court of the United States
,
Congress & Legislation
Type: Article
Abstract
This paper was prepared for a conference about constraints on executive discretion. In addition to law and politics (to whatever extent they do or do not constrain the executive), there is also a distinct third bound on executive discretion: conventions, roughly understood as unwritten but obligatory rules of the political game. Debates over executive discretion should take account of distinctions between contingent politics and conventions; between intragovernmental conventions and extragovernmental conventions; and between conventions against doing things and conventions against saying things. The last distinction, in particular, illuminates the strong resistance, in contexts such as immigration, to executive policy statements that make explicit a pattern of enforcement discretion, one that would otherwise remain only implicit. Even holding legal authority constant, making that authority explicit through general policy statements may trigger the normatively-inflected political sanctions that are characteristic of conventions.
Adrian Vermeule, Essay, Deference and Due Process, 129 Harv. L. Rev. 1890 (2016).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Fifth Amendment
,
Administrative Law & Agencies
,
Courts
,
Supreme Court of the United States
Type: Article
Abstract
In the textbooks, procedural due process is a strictly judicial enterprise; although substantive entitlements are created by legislative and executive action, it is for courts to decide independently what process the Constitution requires. The notion that procedural due process might be committed primarily to the discretion of the agencies themselves is almost entirely absent from the academic literature. The facts on the ground are very different. Thanks to converging strands of caselaw -- partly involving due process, partly involving judicial deference to agency interpretation of procedural provisions in statutes, and partly involving the long shadow of Vermont Yankee v. NRDC -- agencies themselves are now the primary front-line expositors and appliers of the cost-benefit balancing test of Mathews v. Eldridge. The courts for their part often defer, explicitly or implicitly, to agencies’ due process decisions. I will defend this approach, and urge that it be made fully explicit. Rather than decide for themselves “what process is due,” courts should ask only whether the agency offered a rational justification for providing whatever process it did provide. Although the Mathews cost-benefit calculus would still supply the rule of decision, courts should merely review the application of that rule by agencies, and defer to reasonable agency decisions about the costs and benefits of procedural arrangements.
Adrian Vermeule, Leviathan Had a Good War, JOTWELL (Feb. 29, 2016) (reviewing Mariano-Florentino Cuellar, Administrative War, 82 Geo. Wash. L. Rev. 1343 (2014)).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Legal History
Type: Other
Jacob Gersen & Adrian Vermeule, Thin Rationality Review, 114 Mich. L. Rev. 1355 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Statutory Interpretation
Type: Article
Abstract
Under the Administrative Procedure Act, courts review and set aside agency action that is "arbitrary [and] capricious." In a common formulation of rationality review, courts must either take a "hard look" at the rationality of agency decisionmaking, or at least ensure that agencies themselves have taken a hard look. We will propose a much less demanding and intrusive interpretation of rationality review-a thin version. Under a robust range of conditions, rational agencies have good reason to decide in a manner that is inaccurate, nonrational, or arbitrary. Although this claim is seemingly paradoxical or internally inconsistent, it simply rests on an appreciation of the limits of reason, especially in administrative policymaking. Agency decisionmaking is nonideal decisionmaking; what would be rational under ideal conditions is rarely a relevant question for agencies. Rather, agencies make decisions under constraints of scarce time, information, and resources. Those constraints imply that agencies will frequently have excellent reasons to depart from idealized first-order conceptions of administrative rationality. Thin rationality review describes the law in action. Administrative law textbooks typically suggest that the State Farm decision in 1983 inaugurated an era of stringent judicial review of agency decisionmaking for rationality. That is flatly wrong at the level of the Supreme Court, where agencies have won no less than 92 percent of the sixty-four arbitrariness challenges decided on the merits since the 1982 Term. The Court's precedent embodies an approach to rationality review that is highly tolerant of the inescapable limits of agency rationality when making decisions under uncertainty. State Farm is not representative of the law; beloved of law professors, and frequently cited in rote fashion by judges, State Farm nonetheless lies well outside the mainstream of the Supreme Court's precedent. To encapsulate the Court's approach to rationality review, the best choice would be the powerfully deferential opinion in Baltimore Gas, decided in the same Term as State Farm. Plausibly, rather than living in the era of hard look review or the State Farm era, we live in the era of Baltimore Gas.
Adrian Vermeule, What Legitimacy Crisis?, Response to Questioning the Administrative State, Cato Unbound (May 2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Separation of Powers
Type: Other
Adrian Vermeule, Rationally Arbitrary Decisions in Administrative Law, 44 J. Legal Stud. S475 (2015).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
Type: Article
Abstract
How should administrative law cope with genuine uncertainty, in which probabilities cannot be attached to outcomes? I argue that there is an important category of agency decisions under uncertainty in which it is rational to be arbitrary. Rational arbitrariness arises when no first-order reason can be given for the agency’s choice, yet the agency has valid second-order reasons to make a particular choice. When these conditions obtain, even coin flipping may be a perfectly rational strategy of decision making for agencies. Courts should defer to rationally arbitrary decisions. There is a proper role for courts in ensuring that agencies have adequately invested resources in information gathering, which may dispel uncertainty. Yet in some cases the value of further investments in information gathering will be genuinely uncertain. If so, courts should defer to agencies’ second-order choices about informational investments on the same grounds that justify deference to agencies’ first-order choices under uncertainty. If the [Board of Immigration Appeals] proposed to narrow the class of deportable aliens eligible to seek [legal] relief by flipping a coin—heads an alien may apply for relief, tails he may not—we would reverse the policy in an instant. That is because agency action must be based on non-arbitrary, “relevant factors.” (Judulang v. Holder, 132 S. Ct. 476, 485 [2011] [Kagan, J.]) The sense in which I am using the term [“uncertainty”] is that in which the prospect of a European war is uncertain, or the price of copper and the rate of interest twenty years hence, or the obsolescence of a new invention, or the position of private wealth-owners in the social system in 1970. About these matters there is no scientific basis on which to form any calculable probability whatever. We simply do not know. Nevertheless, the necessity for action and for decision compels us as practical men to do our best to overlook this awkward fact and to behave exactly as we should if we had behind us a good Benthamite calculation of a series of prospective advantages and disadvantages, each multiplied by its appropriate probability, waiting to be summed. (Keynes 1937, p. 214)
Adrian Vermeule, Local and Global Knowledge in the Administrative State, in Law, Liberty and State: Oakeshott, Hayek and Schmitt on the Rule of Law 295 (David Dyzenhaus & Thomas Poole eds., 2015).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
Type: Book
Abstract
How should the administrative state be organized, from the epistemic point of view? There is a tension or tradeoff between local and global knowledge; this tradeoff implicitly structures a number of debates about the epistemic capacities of line agencies, the Office of Information and Regulatory Affairs, and the administrative state more generally. I will examine the tradeoff between local and global knowledge at two related levels. The first is the scope of the administrative state’s regulatory jurisdiction; this is the large-scale question of government versus markets that is central to the Hayekian program. The second level is the internal organization of the regulatory bureaucracy, within the area committed to the administrative state’s regulatory jurisdiction. Here the industrial organization literature has adapted Hayekian questions to new settings. On the first issue, Hayekian arguments for a constrained administrative state overlook the ability of non-market institutions to aggregate local and tacit knowledge. On the second issue, top-down epistemic coordination of agencies turns out to be indispensable; OIRA aggregates and coordinates dispersed information – information that is dispersed around the bureaucracy, rather than society -- and does so in a manner that cannot be replicated by decentralized horizontal coordination among agencies.
Adrian Vermeule, No, 93 Tex. L. Rev. 1547 (2015) (reviewing Philip Hamburger, Is Administrative Law Unlawful? (2014)).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Adrian Vermeule, Portrait of an Equilibrium, New Rambler Rev., Mar. 4, 2015 (reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940 (2014)).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
,
Legal History
Type: Article
Abstract
Review of Daniel R. Ernst's Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940.
Adrian Vermeule, Optimal Abuse of Power, 109 Nw. U. L. Rev. 673 (2015).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Courts
Type: Article
Abstract
I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall. There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule -- misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing power under the rules of the 18th-century common law of property, tort, and contract. The administrative state thus trades off governmental and “private” misrule. Second, the rate of change in the policy environment, especially in the economy, is much greater than in the late 18th century -- so much greater that the administrative state has been forced, willy-nilly, to speed up the rate of policy adjustment. The main speeding-up mechanism has been ever-greater delegation to the executive branch, accepting the resulting risks of error and abuse. Third, the costs of enforcing legal rules against executive officials are necessarily positive and plausibly large, in part because any institutional monitors created to detect and punish abuses must themselves be monitored for abuse. The architects of the administrative state believed that a government that always forms undistorted judgments, and that never abuses its power, will do too little, do it too amateurishly, and do it too slowly. In that sense, the administrative state constantly gropes towards an institutional package solution that embodies an optimal level of abuse of power.
Adrian Vermeule, Open-Secret Voting, in Secrecy and Publicity in Votes and Debates 215 (Jon Elster ed., 2015).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: Book
Abstract
Stock debates about transparency and secrecy usually assume that open voting and secret voting are mutually exclusive. But these positions present a false alternative; open and secret voting can be employed as complements in a larger decision-procedure. In what follows I will propose a hybrid or dual procedure of open-secret voting, and attempt to specify the conditions under which that procedure works well. I suggest that open-secret voting can best be justified as an institutional means of obtaining a second opinion from the voting group. A second opinion of this sort might produce informational benefits either for the members of the voting group itself, for outside parties, or for both. This is a companion paper to Adrian Vermeule, Second Opinions, available on SSRN.
Adrian Vermeule, Publius as an Exportable Good, New Rambler Rev., Dec. 3, 2015 (reviewing Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (2015)).
Categories:
Government & Politics
,
Legal Profession
,
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Law & Political Theory
,
Separation of Powers
,
Legal History
,
Legal & Political Theory
Type: Article
Abstract
Review of Sanford Levinson's Review of An Argument Open to All: Reading The Federalist in the 21st Century.
Adrian Vermeule, The Administrative State: Law, Democracy, and Knowledge, in The Oxford Handbook of the U.S. Constitution 259 (Mark Tushnet, Mark Graber & Sanford Levinson eds., 2015).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Administrative Law & Agencies
,
Politics & Political Theory
,
Separation of Powers
Type: Book
Abstract
This is a chapter for the forthcoming Oxford Handbook of the United States Constitution. I provide and compare three organizing frameworks for the administrative state. The first examines its constitutionality, the second its democratic credentials, the third its epistemic and technocratic capacities. After describing each, I examine their interaction, and suggest that the administrative state is the setting for an endlessly shifting series of alliances between and among constitutionalists, democrats and technocrats.
Christian List & Adrian Vermeule, Independence and Interdependence: Lessons from the Hive, 26 Rationality & Soc'y 170 (2014).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Law & Political Theory
Type: Article
Abstract
There is a substantial class of collective decision problems whose successful solution requires interdependence among decision makers at the agenda-setting stage and independence at the stage of choice. We define this class of problems and describe and apply a search-and-decision mechanism theoretically modeled in the context of honeybees and identified in earlier empirical work in biology. The honeybees’ mechanism has useful implications for mechanism design in human institutions, including courts, legislatures, executive appointments, research and development in firms, and basic research in the sciences. Our paper offers a fresh perspective on the idea of “biomimicry” in institutional design and raises the possibility of comparative institutional analysis across species.
Adrian Vermeule, Security and Liberty: Critiques of the Trade-off Thesis, in The Long Decade: How 9/11 Changed the Law 31 (David Jenkins, Amanda Jacobsen & Anders Henriksen eds., 2014).
Categories:
Government & Politics
Sub-Categories:
National Security Law
,
Politics & Political Theory
Type: Book
Abstract
Terror in the Balance: Security, Liberty, and the Courts (2007) advances a “trade-off thesis”: there exists a security–liberty frontier, such that policies below the frontier can be changed so as to improve both security and liberty, while if policy is already at some point on the frontier, neither security nor liberty can be increased without decreasing the other (the trade-off curve). Many commentators have launched critiques of the thesis, but none of them undermine it. Some redefine liberty as a component of security, or security as a component of liberty, while others make the point that not all policies are currently at the security–liberty frontier. These points are entirely consistent with the trade-off thesis; the critics err to the extent that they take these points as grounds for rejecting the thesis itself. No one has yet advanced an alternative framework that is both well-specified and analytically distinct from the trade-off thesis. Although the thesis is widely controverted, it should be common ground.
Adrian Vermeule, The Force of Majority Rule, in Majority Decisions: Principles and Practices 132 (Stéphanie Novak & Jon Elster eds., 2014).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
Type: Book
Abstract
This essay attempts to recover a line of argument, developed by James Fitzjames Stephen and Justice Holmes, that describes majority rule as an irresistible force of nature. Majority rule has political and psychological force independent of its intrinsic merits. That force arises from a range of mechanisms, including the threat of majoritarian violence, the simplicity and focal-point character of majority rule, and political envy. Where the force of majority rule is sufficiently powerful, Stephen argues, majority rule is simply a political constraint, whatever its merits from an ideal point of view. Holmes then urges a least-cost principle: where majorities will inevitably get their way, law should at least ensure that they get their way efficiently - in a manner that minimizes total social cost. This principle has implications for the extension of the suffrage, legislative voting rules, delegation to bureaucracies, criminal law, free speech law, and the law and politics of emergency powers. The conclusion argues for an explanatory approach to social choice theory, as opposed to normative social choice, and for a second-best approach to normative social choice, in which the analyst assumes realistic political constraints.
Eric A. Posner & Adrian Vermeule, Inside or Outside the System?, 80 U. Chi. L. Rev. 1743 (2013).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Public Law
Type: Article
Abstract
In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the "determinacy paradox," and elicit its implications for the theory of public law.
Adriaan M. Lanni & Adrian Vermeule, Constitutional Design in the Ancient World, 64 Stan. L. Rev. 907 (2012).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Ancient Law
,
Legal History
Type: Article
Abstract
This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world. We also discuss the implications of adding single founders and outsider founders to the constitutional toolkit by describing how constitutional legitimacy would work, and how constitutional interpretation would be conducted, under constitutions that display either or both of the distinctive features of ancient constitutional design.
Jacob E. Gersen & Adrian Vermeule, Essay, Delegating to Enemies, 112 Colum. L. Rev. 2193 (2012).
Categories:
Government & Politics
Sub-Categories:
Public Law
,
Administrative Law & Agencies
,
Separation of Powers
,
Elections & Voting
Type: Article
Abstract
An axiom of institutional design is known as the ally principle: all else equal, voters, legislators or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation – from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts – universally assume the ally principle. Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. We identify an enemy principle: in certain cases principals rationally delegate, not to allies, but to enemies or potential enemies — agents who do not share the principal’s preferences or whose preferences are uncertain at the time of the delegation. Our aim is to describe these cases of delegating to enemies, to explain the mechanisms on which they rest, and to offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step towards a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases.
Matthew C. Stephenson & Adrian Vermeule, Chevron Has Only One Step, 95 Va. L. Rev. 597 (2009).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Statutory Interpretation
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
Chevron, U.S.A. v. Natural Resources Defense Council lays out a two-step process that courts must follow when they review a federal agency's construction of a federal statute. We argue that Chevron, rightly understood, has only one step. The single question is whether the agency's construction is permissible as a matter of statutory interpretation. The two Chevron steps both ask this question, just in different ways, and are thus mutually convertible: any opinion written in terms of one step can be written, without loss of content, in terms of the other step. Chevron's artificial division of a unitary inquiry causes material confusion among commentators and courts, and has no benefits; administrative law should jettison the two-step framework.
Jody Freeman & Adrian Vermeule, Massachusetts v. EPA: From Politics to Expertise, 2007 Sup. Ct. Rev. 51 (2008).
Categories:
Environmental Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
Type: Article
Abstract
In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.
Adrian Vermeule, Mechanisms of Democracy: Institutional Design Writ Small (Oxford Univ. Press 2007).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Law & Political Theory
,
Legal Theory & Philosophy
,
Law & Economics
Type: Book
Abstract
What institutional arrangements should a well-functioning constitutional democracy have? Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. In this book, Adrian Vermeule moves beyond these debates, changing the focus to institutional design writ small. In established constitutional polities, Vermeule argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly. Drawing upon a range of social science tools from economics, political science, and other disciplines, Vermeule carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.
Eric A. Posner & Adrian Vermeule, Terror in the Balance Security, Liberty, and the Courts (Oxford Univ. Press 2007).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Terrorism
,
National Security Law
,
Courts
,
Judges & Jurisprudence
Type: Book
Abstract
In Terror in the Balance, Posner and Vermeule take on civil libertarians of both the left and the right, arguing that the government should be given wide latitude to adjust policy and liberties in the times of emergency. They emphasize the virtues of unilateral executive actions and argue for making extensive powers available to the executive as warranted. The judiciary should neither second-guess security policy nor interfere on constitutional grounds. In order to protect citizens, government can and should use any legal instrument that is warranted under ordinary cost-benefit analysis. The value gained from the increase in security will exceed the losses from the decrease in liberty. At a time when the 'struggle against violent extremism' dominates the United States' agenda, this important and controversial work will spark discussion in the classroom and intellectual press alike.
Jacob Gersen & Adrian Vermeule, Chevron as a Voting Rule, 116 Yale L.J. 676 (2007).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Judges & Jurisprudence
,
Statutory Interpretation
,
Supreme Court of the United States
Type: Article
Abstract
In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.
Adrian Vermeule, Judging Under Uncertainty: An Institutional Theory of Legal Interpretation (Harv. Univ. Press 2006).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Economics
,
Judges & Jurisprudence
,
Statutory Interpretation
Type: Book
Abstract
How should judges, in America and elsewhere, interpret statutes and the Constitution? Previous work on these fundamental questions has typically started from abstract views about the nature of democracy or constitutionalism, or the nature of legal language, or the essence of the rule of law. From these conceptual premises, theorists typically deduce an ambitious role for judges, particularly in striking down statutes on constitutional grounds. In this book, Adrian Vermeule breaks new ground by rejecting both the conceptual approach and the judge-centered conclusions of older theorists. Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. Drawing upon a range of social science tools from political science, economics, decision theory, and other disciplines, he argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty. In view of their limited information and competence, judges should adopt a restrictive, unambitious set of tools for interpreting statutory and constitutional provisions, deferring to administrative agencies where statutes are unclear and deferring to legislatures where constitutional language is unclear or states general aspirations.