Adrian Vermeule

Ralph S. Tyler, Jr. Professor of Constitutional Law

Areeda 229

Assistant: Ellen Keng / 617-496-9016

Biography

Adrian Vermeule is the Ralph S. Tyler, Jr. Professor of Constitutional Law. Before coming to the Law School, he was the Bernard D. Meltzer Professor of Law at the University of Chicago. The author or co-author of nine books, most recently Law's Abnegation: From Law's Empire to the Administrative State (2016), The Constitution of Risk (2014) and The System of the Constitution (2012). He was elected to the American Academy of Arts and Sciences in 2012. His research focuses on administrative law, the administrative state, the design of institutions, and constitutional theory. Having grown up in Cambridge and attended Harvard College '90 and Harvard Law School '93, Vermeule lives in Cambridge still.

Areas of Interest

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.
Interview with Adrian Vermeule, The Catholic Constitution, First Things (Aug. 11, 2017).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Constitutional History
,
Religion
,
Religion & Law
Type: Other
Abstract
Adrian Vermeule speaks with First Things assistant editor Connor Grubaugh about three books on constitutionalism from a Catholic perspective.
Adrian Vermeule, Uses of Dignity, First Things, Aug.- Sept. 2017, at 3 (response to Samuel Moyn, Restraining Populism, First Things, May 2017, at 43).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Religion & Law
Type: Article
Eric Posner & Adrian Vermeule, Demystifying Schmitt, in The Oxford Handbook of Carl Schmitt (Jens Meierhenrich & Oliver Simons eds., 2017).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Legal Theory & Philosophy
Type: Book
Abstract
This chapter demystifies Carl Schmitt by interpreting his main insights through the lens of modern social sciences,. There is a large literature in political science on the political foundations of democracy, constitutionalism, and the rule of law. This literature emphasizes that legal rules, by themselves, cannot create a political equilibrium, which always depends on the expectation of political actors that other actors will contribute to preserving the constitutional regime rather than subverting it. This insight allows us to interpret Schmitt’s distinction between legality and legitimacy more concretely than in extant work. There is also a large literature in law and economics on ex ante rules versus ex post standards. Schmitt’s theory of the exception can be understood as an argument that governance through ex post standards, rather than ex ante rules, is inevitable and even desirable where political, economic, or military conditions change rapidly.
Adrian Vermeule, Liturgy of Liberalism, First Things, Jan. 2017, at 57 (reviewing Ryszard Legutko, The Demon in Democracy: Totalitarian Temptations in Free Societies (2016)).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Law & Political Theory
,
Religion & Law
,
Politics & Political Theory
,
Comparative Law
,
European Law
Type: Article
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.
Adrian Vermeule, Reviewability and the "Law of Rules": An Essay in Honor of Justice Scalia, 92 Notre Dame L. Rev. 2163 (2017).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Judges & Jurisprudence
,
Courts
,
Biography & Tribute
Type: Article
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.
Cass R. Sunstein & Adrian Vermeule, The Unbearable Rightness of Auer, 84 U. Chi. L. Rev. 297 (2017).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Judges & Jurisprudence
,
Separation of Powers
Type: Article
Abstract
For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct. In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call "the sign fallacy."
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, 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, 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
Cass R. Sunstein & Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 Sup. Ct. Rev. 41 (2016).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Supreme Court of the United States
,
Congress & Legislation
Type: Article
Abstract
In the early twenty-first century, public law is being challenged by a fundamental assault on the legitimacy of the administrative state, under the banner of “the separation of powers.” The challengers frequently refer to the specter of Stuart despotism, and they valorize a (putatively) heroic opponent of Stuart despotism: the common-law judge, symbolized by Edward Coke. The New Coke is a shorthand for a cluster of impulses stemming from a belief in the illegitimacy of the modern administrative state. Despite its historical guise, the New Coke is a living-constitutionalist movement, a product of thoroughly contemporary values and fears -- perhaps prompted by continuing rejection, in some quarters, of the New Deal itself, and perhaps prompted by a reaction by some of the Justices to controversial initiatives from more recent presidents. In two important decisions in 2015, however, a supermajority of the Court refused to embrace the New Coke, and properly so. Instead the Court issued the long-awaited Vermont Yankee II, insisting that courts are not authorized to add procedures to those required by the APA, and reaffirmed the validity of Auer deference to agency interpretations of their own regulations. The Court’s approach promises to honor the multiple goals of administrative and constitutional law without embracing novel, ungrounded claims that betray basic commitments of the public legal order. For now, the center holds.
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.
Cass R. Sunstein & Adrian Vermeule, Libertarian Administrative Law, 82 U. Chi. L. Rev. 39 (2015).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Administrative Law & Agencies
,
Courts
,
Judges & Jurisprudence
Type: Article
Abstract
In recent years, several judges on the nation’s most important regulatory court -- the United States Court of Appeals for the District of Columbia Circuit -- have given birth to libertarian administrative law, in the form of a series of judge-made doctrines that are designed to protect private ordering from national regulatory intrusion. These doctrines involve nondelegation principles, protection of commercial speech, procedures governing interpretive rules, arbitrariness review, standing, and reviewability. Libertarian administrative law can be seen as a second-best option for those who believe, as some of the relevant judges openly argue, that the New Deal and the modern regulatory state suffer from basic constitutional infirmities. Taken as a whole, libertarian administrative law parallels the kind of progressive administrative law that the same court created in the 1970s, and that the Supreme Court unanimously rejected in the Vermont Yankee case. It should meet a similar fate. Two cases to be decided next Term provide an opportunity for the Court to repudiate libertarian administrative law.
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.
Cass R. Sunstein & Adrian Vermeule, The Law of “Not Now”: When Agencies Defer Decisions, 103 Geo. L.J. 157 (2014).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Administrative agencies frequently say “not now.” They defer decisions about rulemaking or adjudication, or decide not to decide, potentially jeopardiz- ing public health, national security, or other important goals. Such decisions are often made as a result of general Administration policy, may be highly controversial, and are at least potentially subject to legal challenge. When is it lawful for agencies to defer decisions? A substantial degree of agency autonomy is guaranteed by a recognition of resource constraints, which require agencies to set priorities, often with reference to their independent assessments of the relative importance of national policies. Agencies frequently defer decisions because they do not believe that certain policies warrant prompt attention. Unless a fair reading of congressional instructions suggests otherwise, agencies may defer decisions because of their own judgments about appropriate timing. At the same time, agencies may not defer decisions—or decide not to decide—if (1) Congress has imposed a statutory deadline, (2) their failure to act amounts to a circumvention of express or implied statutory requirements, or (3) that failure counts as an abdication of the agency’s basic responsibility to promote and enforce policies established by Congress. Difficult questions are raised by moratoria, formal or informal, on regulatory activity, especially if they are motivated by political considerations. Difficult questions also arise when agencies cannot feasibly meet statutory deadlines while fulfilling their obligation to engage in reasoned decisionmaking.
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.
Adrian Vermeule & Adriaan Lanni, Precautionary Constitutionalism in Ancient Athens, 34 Cardozo L. Rev. 893 (2013).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Ancient Law
Type: Article
Abstract
The Athenian democracy developed striking institutions that, taken together and separately, have long engaged the attention of theorists in law, politics, and history. We will offer a unifying account of the major institutions of the Athenian constitutional order, attempting both to put them in their best light and to provide criteria for evaluating their successes and failures. Our account is that Athenian institutions are best understood as an illustration of precautionary constitutionalism: roughly, the idea that institutions should be designed to safeguard against political risks, limiting the downside and barring worst-case political scenarios, even at the price of limiting the upside potential of the constitutional order. We use this framework to illuminate some of the distinctive features of the Athenian democracy: selection of officials by lot, rotation of office, collegiality, ostracism, and the graphe paranomon (the procedure for overturning an unconstitutional decree). Under some circumstances, precautionary constitutionalism is a useful strategy of institutional design. Under other circumstances, however, precautionary constitutionalism can go wrong in characteristic ways – by perversely exacerbating the very risks it seeks to prevent, by jeopardizing other values and thereby imposing excessive costs, or simply by creating futile precautions that fail the test of incentive-compatibility. We evaluate the precautionary institutions of the Athenian democracy in this light, and suggest that some failed while others succeeded. While selection by lot, rotation, and collegiality proved to be enduring and incentive-compatible institutions, ostracism perversely exacerbated the risks of tyranny and political domination it was intended to prevent, and the graphe paronomon collapsed into futility.
Adrian Vermeule, Collective Wisdom and Institutional Design, in Collective Wisdom: Principles and Mechanisms 338 (Helene Landemore & Jon Elster eds., 2012).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Adrian Vermeule, Introduction: Political Risk and Public Law, 4 J. Legal Analysis 1 (2012).
Categories:
Government & Politics
Sub-Categories:
Public Law
,
Politics & Political Theory
Type: Article
Abstract
On December 15-16, 2011, Harvard Law School convened a conference on “Political Risk and Public Law.” A special issue of the Journal of Legal Analysis will be devoted to publishing papers on this topic by Jon Elster, Edward Glaeser, Eric Posner, Fred Schauer, Mark Tushnet, and myself. The overall aim is to introduce a new set of questions about public law and a new analytical framework for thinking about those questions. The premise of the enterprise is that constitutions and other instruments of public law may fruitfully be viewed as devices for regulating political risks. Large literatures in law, economics, political science and policy studies examine first-order risks that arise from technology, the market, or nature. By contrast, constitutions and foundational statutes, such as the Administrative Procedure Act, may be understood as devices for regulating second-order risks. These are risks that arise from the design of institutions, the allocation of legal and political power among given institutions, and the selection of officials to staff those institutions. This perspective employs the framework of risk analysis elaborated by many disciplines across the social and policy sciences. The framework promises new insights for public law. Constitutional actors have often spoken the prose of risk regulation without knowing it, offering arguments about constitutional and institutional design that implicitly posit second-order risks and offer institutional prescriptions for managing those risks. By bringing the analytic structure of those arguments to the surface, political risk analysis promises to allow a more intelligent description and evaluation of the major problems 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.
Adrian Vermeule, Book Review: Peter Stone, The Luck of the Draw: The Role of Lotteries in Decision Making (2011), 10 Perspectives on Pol. 180 (2012).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Article
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.
Adrian Vermeule, Intermittent Institutions, 10 Pol., Phil. & Econ. 420 (2011).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Abstract
Standing institutions have a continuous existence: examples include the United Nations, the British Parliament, the US presidency, the standing committees of the US Congress, and the Environmental Protection Agency. Intermittent institutions have a discontinuous existence: examples include the Roman dictatorship, the Estates-General of France, constitutional conventions, citizens' assemblies, the Electoral College, grand and petit juries, special prosecutors, various types of temporary courts and military tribunals, ad hoc congressional committees, and ad hoc panels such as the 9/11 Commission and base-closing commissions. Within the class of intermittent institutions, one may distinguish periodic from episodic institutions. The former come into being on a schedule set down in advance, while the latter come into being at unpredictable intervals. The Electoral College is a periodic institution, while the Roman dictatorship is an episodic one. This article attempts to identify the benefits and costs of intermittent institutions, both as a class and in their periodic and episodic varieties. The largest goals are to state some general conditions under which intermittent institutions prove superior or inferior to standing institutions, and to illuminate the temporal dimension of institutional design.
Adrian Vermeule, Second Opinions and Institutional Design, 97 Va. L. Rev. 1435 (2011).
Categories:
Government & Politics
Sub-Categories:
Separation of Powers
,
Judges & Jurisprudence
,
Public Law
,
Congress & Legislation
Type: Article
Abstract
In many settings, decisionmakers seek second opinions, and are wise to do so. Sometimes decisionmakers do not seek second opinions when they should have, or seek them when they should not have. In yet other settings, legal rules require decisionmakers to seek second opinions before taking action. There is a burgeoning literature on second opinions in professional contexts, as when patients or clients seek advice from doctors or lawyers. My aim, by contrast, is to analyze second opinions as a technique for the design of lawmaking institutions. I will try to show that many institutional structures, rules and practices have been justified as mechanisms for requiring or permitting decisionmakers to obtain second opinions; examples include judicial review of statutes or of agency action, bicameralism, the separation of powers, and the law of legislative procedure. I attempt to identify the main costs and benefits of second opinions, to identify the conditions under which second-opinion arguments prove more or less successful, and to consider how the lawmaking system might employ second-opinion mechanisms to greater effect. Part I provides an analytic taxonomy of second-opinion mechanisms and introduces some conceptual distinctions. Part II analyzes the main benefits and costs of second-opinion mechanisms, and then ties the benefits and costs together with some comparative statics, attempting to identify general conditions under which second-opinion mechanisms are desirable or undesirable. Part III applies the analysis to legislative structure and procedure, and to judicial stare decisis. I claim, among other things, that the Supreme Court should adopt a norm that two successive decisions, not merely one, are necessary to create binding law.
Elizabeth Magill & Adrian Vermeule, Allocating Power Within Agencies, 120 Yale L.J. 1032 (2011).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
Standard questions in the theory of administrative law involve the allocation of power among legislatures, courts, the President, and various types of agencies. These questions are often heavily informed by normative commitments to particular allocations of governmental authority among the three branches of the national government. These discussions, however, are incomplete because agencies are typically treated as unitary entities. In this Article, we examine a different question: how does administrative law allocate power within agencies? Although scholars have sometimes cracked open the black box of agencies to peer inside, their insights are localized and confined to particular contexts. We will generalize the idea, attempting to show that administrative law allocates power both horizontally and vertically within agencies and offering some hypotheses about the nature of the resulting effects. Horizontally, administrative law directly or indirectly determines the relative influence within agencies of various types of professionals—lawyers, scientists, civil servants, politicians, and others. Vertically, administrative law directly or indirectly determines the relative influence within agencies of appointed agency heads, midlevel bureaucrats, and line personnel. This perspective illuminates several of the most puzzling judicially developed principles and doctrines of administrative law, including the doctrines surrounding Chenery, Chevron, Mead, and Accardi, as well as agency structures and procedures established by statute or executive order. The internal allocation perspective offered here both improves upon and critiques existing justifications for these developments and in that sense points the way toward a superior understanding of administrative law.
Stephen G. Breyer, Richard B. Stewart, Cass R. Sunstein & Adrian Vermeule, Administrative Law and Regulatory Policy: Problems, Text, and Cases (Wolters Kluwer Law & Bus. 7th ed. 2011).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Administrative Law & Agencies
,
Legal Education
Type: Book
Adrian Vermeule, The Limits of Epistemic Legalism: A Reply, 2 Jerusalem Rev. Legal Stud. 47 (2010).
Categories:
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
This is Adrian Vermeule’s reply to the scholars' comments in the symposium on his book "Law and the Limits of Reason," in the second issue of The Jerusalem Review of Legal Studies (p. 5-55). The issue includes the following critical comments: Alon Harel, The Vices of Epistemic Institutionalism, 2 Jerusalem Review of Legal Studies 5 (2010); Rivka Weill, Can We Reason About Reason? On Adrian Vermeule’s Law and the Limits of Reason, 2 Jerusalem Review of Legal Studies 15 (2010); Ori Aronson, Getting It Right: Institutional Design and Epistemic Competence in Law and the Limits Of Reason, 2 Jerusalem Review of Legal Studies 32 (2010).
Adrian Vermeule, The Glorious Commander in Chief, in The Limits of Constitutional Democracy 157 (Jeffrey K. Tulis & Stephen Macedo eds., 2010).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
Type: Book
Abstract
Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail?
Adrian Vermeule, The Invisible Hand in Legal and Political Theory, 96 Va. L. Rev. 1417 (2010).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
Type: Article
Eric A. Posner, Kathryn E. Spier & Adrian Vermeule, Divide and Conquer, 2 J. Legal Analysis 417 (2010).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Law & Political Theory
Type: Article
Abstract
The maxim “divide and conquer” (divide et impera) is frequently invoked in legal theory and the social sciences. We suggest that the maxim is a placeholder for a complex of ideas related by a family resemblance, but differing in their details, mechanisms and implications. We provide an analytic taxonomy of divide and conquer mechanisms in the settings of a Stag Hunt Game and an indefinitely-repeated Prisoners’ Dilemma. These two games both illustrate a tension between the social desirability of cooperation and the private incentives for safety and short-run gains. Next, we describe the role of third parties who are not themselves players of these games but who will be harmed if the players cooperate. In particular, we explore a variety of divide-and-conquer strategies – including the sabotage of communication channels, the payment of bribes, and the imposition of penalties – that effectively prevent cooperation among the players of these games. A number of applications are considered, including labor law, constitutional design and the separation of powers, imperialism and race relations, international law, litigation and settlement, and antitrust law. Conditions under which divide and conquer strategies reduce or enhance social welfare, and techniques that policy makers can use to combat divide and conquer tactics, are also discussed.
Adrian Vermeule, Sagesse Collective et Construction des Institutions, in Raison Publique, n° 12: La Sagesse Collective (2010).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Book
Abstract
Ces dernières années ont vu paraître un grand nombre de travaux sur la sagesse et la folie des foules, sur les mécanismes de l’agrégation du jugement, sur les débats à plusieurs voix en théorie juridique et politique. Il faut désormais traduire ces idées au niveau des institutions : c’est ce que je me propose de faire ici. Après avoir clarifié les questions conceptuelles et les mécanismes de la sagesse collective, je dessinerai un cadre qui permettra d’en tirer profit au niveau institutionnel, en (...)
Adrian Vermeule, Foreword: System Effects and the Constitution, 123 Harv. L. Rev. 6 (2009).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
Type: Article
Abstract
A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. Familiar examples include Condorcet’s paradox and the Prisoners’ Dilemma. Public law is rife with system effects that are more important and less familiar. Although such effects are sometimes recognized in local contexts, they have a common analytic structure and can profitably be analyzed in global terms. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional order is to be democratic, each of its component institutions must be democratic, taken one by one; and (2) the fallacious assumption that if judges are politically biased, courts must issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory. A systemic approach to constitutional theory implies what I will call second-best constitutionalism. Stated abstractly, suppose that at least some of the conditions necessary to produce a given ideal or first-best constitutional order fail to hold. Even if it would be best to achieve full satisfaction of all those conditions, it does not follow that it is best to achieve as many of the conditions as possible, taken one by one. Rather, multiple failures of the ideal can offset one another, producing a closer approximation to the ideal at the level of the overall system. Although the idea is abstract, we will see that problems of second best are chronic in real-world constitutional systems, including our own, because such systems are always partly constrained by technology, economics, and politics.
Adrian Vermeule & Eric A. Posner, Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008, 76 U. Chi. L. Rev. 1613 (2009).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
This essay compares crisis governance and emergency lawmaking after 9/11 and the financial meltdown of 2008. We argue that the two episodes were broadly similar in outline, but importantly different in detail, and we attempt to explain both the similarities and differences. First, broad political processes and constraints operated in both episodes to create a similar pattern of crisis governance, in which Congress delegated large new powers to the executive. We argue that this pattern is best explained by reference to the account of lawmaking in the administrative state offered by Carl Schmitt, as opposed to the standard Madisonian view. Second, within the broad constraints of crisis politics, the Bush administration asserted its authority more aggressively after 9/11 than in the financial crisis. Rejecting competing explanations based on legal differences, the nature of the threat, or other factors, we attribute the difference to the Bush administration's loss of popularity and credibility over the period between 2001 and 2008 and to the more salient and divisive distributive effects of financial management.
Adrian Vermeule & Cass R. Sunstein, Conspiracy Theories: Causes and Cures, 17 J. Pol. Phil. 202 (2009).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Law & Political Theory
Type: Article
Adrian Vermeule, The Interaction of Democratic Mechanisms, 18 Good Soc'y 21 (2009).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Congress & Legislation
Type: Article
Abstract
Mechanisms identifies tools of institutional design “writ small” that promote democratic values. Those tools include the veil of uncertainty, submajority voting rules, absolute majority voting rules, rules of delayed and selective transparency, and institutions for promoting legislative deliberation on constitutional questions. In this response, I go beyond the book to consider the complex interaction of democratic mechanisms, both on the demand side (what mechanisms are desirable?) and on the supply side (what mechanisms will political actors have the capacity and incentive to supply?). On the demand side, I consider cases in which mechanisms relate as complements, as substitutes, or in a fashion that is uncertain from the standpoint of the institutional designer. On the supply side, I consider the optimal scope of democratic reforms, the optimal majority for obtaining reform, and problems arising from the general theory of second best.
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.
Adrian Vermeule, The Parliament of the Experts, 58 Duke L.J. 2231 (2009).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Abstract
In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus? I argue that voting by expert panels is likely, on average, to be epistemically superior to the substantive judgment of agency heads, in determining questions of fact, causation, or prediction. Nose counting of expert panels should generally be an acceptable basis for decision under the arbitrary and capricious or substantial evidence tests. Moreover, agencies should be obliged to follow the (super)majority view of an expert panel, even if the agency's own judgment is to the contrary, unless the agency can give an epistemically valid second-order reason for rejecting the panel majority's view.
Adrian Vermeule, Our Schmittian Administrative Law, 122 Harv. L. Rev. 1095 (2009).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Federalism
,
Separation of Powers
Type: Article
Abstract
Our administrative law contains, built right into its structure, a series of legal “black holes” and “grey holes” – domains in which statutes, judicial decisions, and institutional practice either explicitly or implicitly exempt the executive from legal constraints. Legal black holes and grey holes are best understood by drawing upon the thought of Carl Schmitt, in particular his account of the relationship between legality and emergencies. In this sense, American administrative law is Schmittian. Moreover, it is inevitably so. Extending legality to eliminate these black and grey holes is impracticable; any aspiration to eliminate the Schmittian elements of our administrative law is utopian.
Adrian Vermeule, Many-Minds Arguments in Legal Theory, 1 J. Legal Analysis 1 (2009).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
Many-minds arguments claim that in some way or another, groups of decisionmakers tend to make better decisions than individuals. This essay identifies five general and recurring problems with such arguments, as follows: (1) Whose minds? The group or population whose minds are at issue is often equivocal or ill-defined. (2) Many minds, worse minds. The number of minds endogenously influences their quality, often for the worse. More minds can be systematically worse than fewer because of selection effects, incentives for epistemic free-riding, and emotional and social influences. (3) Epistemic bottlenecks. The epistemic benefits of many minds are often diluted or eliminated because the structure of institutions funnels decisions through an individual decision-maker, or a small group of decision-makers, who occupy an epistemic bottleneck or chokepoint. (4) Many minds vs. many minds. The institutional comparisons that pervade legal theory are typically many-to-many comparisons rather than one-to-many. (5) Many minds vs. other values. Epistemic considerations systematically trade off against other goods, such as the costs of decision-making and the expression of moral norms. The epistemic quality of the laws is a good to be optimized, not maximized.
Adrian Vermeule, Congress and the Costs of Information: A Response to Jane Schacter, 89 B.U. L. Rev. 677 (2009).
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Congress & Legislation
,
Elections & Voting
,
Politics & Political Theory
,
Networked Society
Type: Article
Adrian Vermeule, Law and the Limits of Reason (Oxford Univ. Press 2008).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Courts
,
Judges & Jurisprudence
,
Congress & Legislation
Type: Book
Abstract
Human reason is limited. What are the consequences of this fact for the contested lawmaking claims between courts, legislatures and the executive branch? In light of the limits of reason, how should legal institutions be designed? In Law and the Limits of Reason, Adrian Vermeule criticizes the view that the limits of reason counsel in favor of judicial lawmaking in the style of the common law. He argues that there is no logical connection between the limits of reason, on the one hand, and the superiority of common law or of judge-made constitutional law on the other. The relatively small number of judges on relevant courts, their limited informational base and generalist rather than specialized skills, ensure that judicial reason is itself sharply limited and that the argument to judicial lawmaking from the limits of reason outruns the logical, causal, and evidentiary support. Instead, Adrian Vermeule proposes and defends a "codified constitution" - a regime in which legislatures have the primary authority to develop constitutional law over time, through statutes and constitutional amendments. Precisely because of the limits of human reason, large modern legislatures, with their numerous membership, complex internal structures for processing information and their abundant informational resources, are the most effective lawmaking institutions.
Adrian Vermeule, Holmes on Emergencies, 61 Stan. L. Rev. 163 (2008).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Legal Theory & Philosophy
,
Biography & Tribute
Type: Article
Abstract
It seems odd that despite the torrent of writing on emergencies and the law after 9/11, no one has systematically examined the view of emergencies held by our greatest judge. Perhaps the problem is that Justice Holmes has so often been subdivided along doctrinal lines. There is the Holmes of free speech law, represented by the majority opinion in Schenck v. United States and by the dissents in Abrams v. United States and Gitlow v. New York. There is the Holmes of property and takings law, represented by the majority opinion in Pennsylvania Coal Co. v. McMahon. There is the Holmes of due process law, represented by the dissents in Lochner v. New York and Tyson & Bro. v. Banton. And no one much talks about the Holmes opinions first upholding and then invalidating emergency rent control, Block v. Hirsh and Chastleton Corp. v. Sinclair, or about the opinion upholding emergency executive detention in Moyer v. Peabody. In what follows, part of my aim is to suggest that what doctrine has put asunder, a focus on emergencies can reunite. Emergencies are a central theme of Holmes's jurisprudence, one that cuts across doctrinal categories and clarifies theoretical puzzles. My central suggestion is that Holmes's judicial and extrajudicial writings, in their best light, implicitly suggest a coherent account of emergencies, law, and constitutional adjudication. I will call this account the epistemic theory of emergencies, with the caveat that I use "theory" not in any rigorous way but just to indicate that Holmes tended to approach questions of emergency powers with a distinctive set of prejudices. We will see that, quite characteristically, Holmes was suggestive but not systematic about his theoretical premises. Despite the ambiguities, however, it is possible to reconstruct a Holmesian account of emergencies that is both plausible and (I hope) theoretically fresh.
Adrian Vermeule, A New Deal for Civil Liberties: An Essay in Honor of Cass R. Sunstein, 43 Tulsa L. Rev. 921 (2008).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Political Theory
,
Legal Theory & Philosophy
,
Biography & Tribute
Type: Article
Abstract
A central, organizing motif of Cass Sunstein's work is the effort to spell out the consequences of the New Deal for American law. I suggest that anyone who shares Sunstein's premises can and should go even farther in this direction. The logical consequence of Sunstein's views is a New Deal for all civil liberties and personal liberties. Criminal law and procedure, and cases growing out of the Global War on Terror, should be approached through New Deal lenses. All civil and personal liberties will ultimately have to justify themselves at the bar of cost-benefit analysis. This essay is prepared for a symposium on "The Scholarship of Cass R. Sunstein" to be published by the Tulsa Law Review.
Adrian Vermeule, Emergency Lawmaking after 9/11 and 7/7, 75 U. Chi. L. Rev. 1155 (2008).
Categories:
Government & Politics
Sub-Categories:
National Security Law
,
Executive Office
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Abstract
This essay offers case studies of three emergency statutes, all dealing with terrorism and all enacted within less than a year after a major terrorist attack: the September 14, 2001 Authorization to Use Military Force; the USA PATRIOT Act; and the U.K. Terrorism Act 2006. A standard worry about such cases is that the circumstances of emergency lawmaking produce blank-check delegations to the executive. The fog of uncertainty, emotions such as urgency and visceral fear, and the tendency of legislators and the public to rally 'round the flag, all cause legislators to vote the executive massive new powers, regardless of whether those powers are rationally justifiable. This view is descriptively and theoretically flawed. Descriptively, executives in all three episodes lost control of the political dynamics, faced bipartisan resistance or rebellion in the legislature, and ended up obtaining far less than they asked for or desired. Theoretically, emergency conditions have cross-cutting political effects on legislators. The mechanisms and forces operative during emergency lawmaking cut both ways, constraining as well as empowering the executive, with unpredictable net results in particular cases. Although executives usually receive new powers in emergencies, there is no reason to think that they systematically tend to receive more new authority than a rational legislature would provide.
Adrian Vermeule & Eric A. Posner, Constitutional Showdowns, 156 U. Pa. L. Rev. 991 (2008).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Separation of Powers
,
Executive Office
,
Judges & Jurisprudence
,
Congress & Legislation
Type: Article
Abstract
A constitutional showdown is a disagreement between branches of government about their constitutional powers that ends in the total or partial acquiescence by one branch in the views of the other and that creates a constitutional precedent. Standard examples of showdowns include disputes over executive privilege, war-making and -funding, and court-packing. Showdowns are costly because they interfere with the normal operation of government, but they also produce important and overlooked benefits. They are an important mechanism of constitutional development, and, among other things, clarify the lines of constitutional authority. We tote up the costs and benefits of constitutional showdowns, show their continuity with other legal phenomena, and criticize the prevailing wisdom that government agents should avoid them as much as possible.
Adrian Vermeule & Elizabeth Garrett, Transparency in the U.S. Budget Process, in Fiscal Challenges: An Interdisciplinary Approach to Budget Policy 68 (Elizabeth Garrett, Elizabeth A. Graddy & Howell E. Jackson eds., 2008).
Categories:
Government & Politics
Sub-Categories:
Government Transparency
Type: Book
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, Connecting Positive and Normative Legal Theory, 10 U. Pa. J. Const. L. 387 (2008).
Categories:
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
Type: Article
Abstract
Positive and normative legal theory often seem to have little to do with one another. I suggest that the disconnect arises from two sources: the gap between fact and value, and the gap between external and internal perspectives on law. I then lay out a repertoire of strategies and mechanisms for connecting positive and normative legal theory. In some cases, positive theory can serve as a direct source of normative arguments. In other cases, positive theory serves as an indirect constraint on normative decisionmaking, thereby narrowing the set of normative arguments that must be considered. Finally, I ask: in light of our best positive theories, to what audiences can normative scholarship coherently be addressed?
Adrian Vermeule, Common Law Constitutionalism and the Limits of Reason, 107 Colum. L. Rev. 1482 (2007).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Congress & Legislation
,
Judges & Jurisprudence
Type: Article
Abstract
In recent years, the central claim of common-law constitutionalism has been that precedent and tradition embody some form of latent wisdom. Judges will generally do best by deferring to the wisdom embodied in precedent and tradition, rather than trusting to their unaided reason. In what follows, I offer a critical analysis of this family of claims. Drawing throughout on Jeremy Bentham's critique of the subconstitutional common law, I conclude that the constitutional common law is not plausibly seen as a repository of latent wisdom, at least not to any greater extent than statutes and other nonjudicial sources of law. The mechanisms advanced by common-law constitutionalists suffer from infirmities of internal logic and from a failure to make the necessary institutional comparisons between and among precedent and tradition, on the one hand, and the outputs of legislatures, executive officials, and constitutional framers on the other.
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.
Adrian Vermeule & Eric A. Posner, The Credible Executive, 74 Chi. L. Rev. 865 (2007).
Categories:
Government & Politics
Sub-Categories:
Executive Office
Type: Article
Abstract
Legal and constitutional theory has focused chiefly on the risk that voters and legislators will trust an ill-motivated executive. This paper addresses the risk that voters and legislators will fail to trust a well-motivated executive. Absent some credible signal of benign motivations, voters will be unable to distinguish good from bad executives and will thus withhold discretion that they would have preferred to grant, making all concerned worse off. We suggest several mechanisms with which a well-motivated executive can credibly signal his type, including independent commissions within the executive branch; bipartisanship in appointments to the executive branch, or more broadly the creation of domestic coalitions of the willing; the related tactic of counter-partisanship, or choosing policies that run against the preferences of the president's own party; commitments to multilateral action in foreign policy; increasing the transparency of the executive's decisionmaking processes; and a regime of strict liability for executive abuses. We explain the conditions under which these mechanisms succeed or fail, with historical examples.
Adrian Vermeule & Eric A. Posner, Originalism and Emergencies: A Reply to Lawson, 87 B.U. L. Rev. 313 (2007).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Executive Office
,
Judges & Jurisprudence
,
National Security Law
Type: Article
Abstract
Professor Gary Lawson has written an illuminating response to our book, Terror in the Balance: "Security, Liberty and the Courts" (Oxford University Press 2007). Lawson's main thesis is that the original understanding of the Constitution supports what we call the judicial deference thesis - that courts should defer to the executive and legislative branches during emergencies. In this brief reply, we offer three claims. First, we express skepticism about whether there can be an overlapping consensus between originalists and nonoriginalists about judicial deference in times of crisis. Second, we affirmatively argue that if originalist adjudication is at all justified by reference to its consequences, then judges should be less originalist in emergencies than in normal times. Third, judges should also be less Burkean or traditionalist during emergencies than in normal times.
Adrian Vermeule, Should We Have Lay Justices?, 59 Stan. L. Rev. 1569 (2007).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Judges & Jurisprudence
Type: Article
Abstract
By "lay Justices" I mean Justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay Justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins—methodological diversity, ideological diversity, and racial or ethnic or gender diversity—say little or nothing about professional diversity on the Court. I shall suggest that the optimal number of lay Justices is greater than zero, under specified empirical conditions. I do not know whether those conditions actually hold, but on the other hand no one knows that they do not. It is very plausible that the conditions do hold, in which case the status quo of zero lay Justices is an implausible extreme. In the strong form of the argument, it would be a good idea (whether or not it is a politically feasible one) to appoint a historian, economist, doctor, accountant, soldier, or some other nonlawyer professional to the Court. In a weaker form of the argument, I also suggest that at a minimum, we should appoint more dual-competent Justices—lawyers who also have a degree or some other real expertise in another body of knowledge or skill...
Adrian Vermeule, Posner on Security and Liberty: Alliance to End Repression v. City of Chicago, 120 Harv. L. Rev. 1251 (2007).
Categories:
Discrimination & Civil Rights
,
Government & Politics
Sub-Categories:
Civil Rights
,
Federalism
,
Separation of Powers
,
National Security Law
,
Judges & Jurisprudence
Type: Article
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, Book Review: Louis Fisher, In the Name of National Security: Unchecked Presidential Power and the Reynolds Case, 122 Pol. Sci. Q. 322 (2007).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
National Security Law
,
Government Transparency
Type: Article
Jacob E. Gersen & Adrian Vermeule, Improving Deference: Chevron as a Voting Rule, 116 Yale L.J. Pocket Part 235 (2007).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
Type: Article
Adrian Vermeule, Instrumentalisms: Critiquing Legal Instrumentalism, 120 Harv. L. Rev. 2113 (2007) (reviewing Brian Z. Tamanaha, Law as a Means to an End: Threat to the Rule of Law (2006)).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Judges & Jurisprudence
Type: Article
Abstract
My basic suggestion, in Part I, is that there is no such thing as “instrumentalism.” There is only a variety of instrumentalisms, offered in different theoretical contexts for different purposes. The merits of these different instrumentalisms must be evaluated locally rather than globally. Furthermore – this is a separate point, but a complementary one – there are several antonyms for legal instrumentalism that are materially different. It is no more coherent to praise all of them, just because they are not instrumentalism, than it would be to praise all of anarchism, fascism, and communism because they are alternatives to liberal democracy. Subsequently, in Part II, I ask what prescriptions for the legal system follow from a critique of legal instrumentalism. I suggest that in a legal culture pervaded by instrumentalism (in all of its possible senses), there are powerful discursive pressures to justify an anti-instrumental view by reference to the beneficial effects that holding such a view will produce – by reference, that is, to the instrumental benefits of anti-instrumentalism. When combined with the claim that anti-instrumentalism requires certain beliefs, not merely certain actions, this is an intrinsically paradoxical stance; it leads, perhaps unavoidably, to a type of esoteric legalism, under which the theorist is quite willing to promote a false belief in the truth of anti-instrumentalism in order to secure the benefits of that belief. Unfortunately, however, there are well-known paradoxes of esotericism that make views of this sort self-defeating. In the Conclusion, I suggest that despite the theoretical puzzles underlying LME, it possesses a thematic and emotional unity as a kind of legal dystopia. As such, its contributions should be assessed by literary as well as theoretical criteria.
Adrian Vermeule, Second-Best Democracy, Harv. L. & Pol'y Rev. (Online) (Dec. 4, 2006).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Congress & Legislation
,
Elections & Voting
,
Executive Office
,
Politics & Political Theory
Type: Article
Adrian Vermeule & Eric Posner, Emergencies and Democratic Failure, 92 Va. L. Rev. 1091 (2006).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
National Security Law
,
Judges & Jurisprudence
,
Politics & Political Theory
Type: Article
Abstract
Critics of emergency measures such as the U.S. government's response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Products framework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.
Adrian Vermeule & Jack L. Goldsmith, How War Can Bring Peace, N.Y. Times, Sept. 10, 2006.
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
Military, War, & Peace
,
National Security Law
,
Networked Society
Type: News
Adrian Vermeule, Constitutional Amendments and the Constitutional Common Law, in The Least Examined Branch: the role of legislatures in the constitutional state 229 (Richard W. Bauman & Tsvi Kahana eds., 2006).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
Type: Book
Adrian Vermeule, Political Constraints on Supreme Court Reform, 90 Minn. L. Rev. 1154 (2006).
Categories:
Government & Politics
Sub-Categories:
Supreme Court of the United States
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Courts
Type: Article
Abstract
This essay describes and explains the political constraints that limit structural reform of the Supreme Court, using the failure of Roosevelt's 1937 court-packing plan as a running example. The thesis is that movements for structural reform of the Court have a self-negating tendency. The very conditions that produce demand for structural reform of the Court also tend to produce counterforces that block reform.
Adrian Vermeule & Eric A. Posner, Should Coercive Interrogation Be Legal?, 104 Mich. L. Rev. 671 (2006).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Terrorism
,
Criminal Prosecution
,
National Security Law
,
Human Rights Law
Type: Article
Abstract
Most academics who have written on coercive interrogation believe that its use is justified in extreme or catastrophic scenarios but that nonetheless it should be illegal. They argue that formal illegality will not prevent justified use of coercive interrogation because government agents will be willing to risk criminal liability and are likely to be pardoned, acquitted, or otherwise forgiven if their behavior is morally justified. This outlaw and forgive approach to coercive interrogation is supposed to prevent coercive interrogation from being applied in inappropriate settings, to be symbolically important, and nonetheless to permit justified coercive interrogation. We argue that the outlaw and forgive approach rests on questionable premises. If coercive interrogation is ever justified, and the benefits outweigh the risks of error and unintended consequences, it should be legal, albeit strictly regulated. The standard institutional justifications for outlaw and forgive - rules/standards problems, slippery slopes, and symbolism - are unpersuasive.
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.
Adrian Vermeule, Self-Defeating Proposals: Ackerman on Emergency Powers, 75 Fordham L. Rev. 631 (2006).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Executive Office
,
National Security Law
,
Politics & Political Theory
Type: Article
Adrian Vermeule, The Delegation Lottery, 119 Harv. L. Rev. F. 105 (2006).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Administrative Law & Agencies
,
Congress & Legislation
,
Politics & Political Theory
Type: Article
Abstract
Replying to Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk and the Choice Between Agencies and Courts, 119 Harv. L. Rev. 1035 (2006). Matthew Stephenson models "the decision calculus faced by a rational, risk-averse legislator who must choose between delegation to an agency and delegation to a court." On the assumption that delegation to agencies tends to produce interpretive consistency across issues while delegation to courts tends to produce interpretive consistency over time, a risk-averse legislator interested in reducing variance along either dimension will face a tradeoff between intertemporal risk diversification and interissue risk diversification. From this basic tradeoff, Stephenson derives comparative statics about the rational, risk-averse legislator's choice of delegates under various conditions. I suggest that Stephenson's legislative-delegation model rests on excessively artificial assumptions and is unable to yield significant predictions - in either the political or statistical sense. In particular, it is unsatisfying to model legislators as entering a "policy lottery" by enacting ambiguous delegating statutes, but then also to picture them as clearly specifying the identity of the delegate. The same institutional and political factors that tend to produce a first-order policy lottery over statutory substance also tend to produce a second-order "delegation lottery" over the question whether agencies or courts have ultimate interpretive authority. Moreover, the factors the model includes are, at best, second-decimal considerations relative to the factors it excludes.
Adrian Vermeule & Cass R. Sunstein, Deterring Murder: A Reply, 58 Stan. L. Rev. 847 (2005).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Capital Punishment
,
Legal Theory & Philosophy
Type: Article
Adrian Vermeule & Cass R. Sunstein, Is Capital Punishment Morally Required? Acts, Omissions and Life-Life Tradeoffs, 58 Stan. L. Rev. 703 (2005).
Categories:
Criminal Law & Procedure
,
Disciplinary Perspectives & Law
Sub-Categories:
Capital Punishment
,
Criminal Justice & Law Enforcement
,
Sentencing & Punishment
,
Legal Theory & Philosophy
Type: Article
Abstract
Many people believe that the death penalty should be abolished even if, as recent evidence seems to suggest, it has a significant deterrent effect. But if such an effect can be established, capital punishment requires a life-life tradeoff, and a serious commitment to the sanctity of human life may well compel, rather than forbid, that form of punishment. The familiar problems with capital punishment--potential error, irreversibility, arbitrariness, and racial skew--do not require abolition because the realm of homicide suffers from those same problems in even more acute form. Moral objections to the death penalty frequently depend on a sharp distinction between acts and omissions, but that distinction is misleading in this context because government is a special kind of moral agent. The widespread failure to appreciate the life-life tradeoffs potentially involved in capital punishment may depend in part on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve. The objection to the act/omission distinction, as applied to government, has implications for many questions in civil and criminal law.
Adrian Vermeule, Selection Effects in Constitutional Law, 91 Va. L. Rev. 953 (2005).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Elections & Voting
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Supreme Court of the United States
Type: Article
Abstract
The standard consequentialist analysis of constitutional law focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making "ambition counteract ambition"; justify negative liberties, such as free speech and free association, as a necessary corrective to incumbent officials' incentives to suppress political opposition; and so forth. In this experimental Essay, I offer a preliminary sketch of a different way of looking at constitutional law generally and constitutional structure in particular: through the lens of "selection effects." Constitutional rules, on this account, should focus not only on the creation of optimal incentives for those who happen to occupy official posts at any given time, but also on the question which (potential) officials are selected to occupy those posts over time. Where an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, selection analysis is long-term and dynamic, asking how legal rules themselves produce feedback effects that, over time, bring new types of government officials into power. This turn to selection-based analysis yields fresh insight into the dynamics of constitutionalism. Because constitutional rules affect the pool of potential and actual officeholders, as well as the behavior of current officeholders, focusing on selection effects shows that some constitutional rules prove "self-stabilizing": the rules tend to select a corps of officeholders who will act to uphold and stabilize the rules themselves. Other constitutional rules, by contrast, prove "self-negating": the rules tend to select a corps of officeholders who work to undermine or destabilize the rules themselves. This framework supplies insights into diverse areas of constitutional law and theory, ranging from governmental structure, campaign finance, and voting rights to criminal sentencing, free speech, and affirmative action.
Adrian Vermeule, Submajority Rules: Forcing Accountability Upon Majorities, 13 J. Pol. Phil. 74 (2005).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Politics & Political Theory
,
Government Accountability
Type: Article
Abstract
Legal and political theory have paid a great deal of attention to supermajority rules, which require a fraction of votes greater than 1/2+1 to reach a decision, and thus empower a minority to block change. In this paper I consider the opposite deviation from simple majority rule: submajority rules, under which a voting minority is granted the affirmative power to change the status quo. Among the examples I will consider are: - The Journal Clause, which allows 1/5 of the legislators present in either House to force a roll-call vote; - The discharge rule in the House, which (at various points, although not today) has permitted a specified minority of legislators to force bills out of committee for consideration on the floor; - Senate Rule XXII, under which a cloture petition is valid when signed by sixteen Senators; - The Seven Member Rule, under which a minority of designated committees in the House and Senate can require the executive branch to divulge information; - House Rule XI, which entitles committee minorities to call witnesses at hearings; - The famous Rule of Four that allows four Justices to grant a writ of certiorari and thereby put a case on the Supreme Court's agenda; - Rules governing direct democracy that permit a defined minority of a state's electorate to place a question on the ballot, or to force a recall election; - Rules governing international organizations, which frequently allow a defined minority to call an emergency session or to force a roll-call vote. Submajority rules are rarely discussed, either because they are assumed not to exist, or because they are assumed to lack any institutional virtues, or because submajoritarian decisions are assumed to be chronically unstable in light of the risk that subsequent majorities will reverse the submajority's decision. I will dispute all three assumptions. Submajority rules have important procedural and deliberative virtues: in a range of situations they enable a minority to force public accountability upon a majority, to the benefit of the institution as a whole. The reversibility problem can be, and is, dampened by other institutional rules and norms that protect submajoritarian decisions, or by the simpler expedient of adopting submajority rules only for decisions that are inherently irreversible or costly to reverse, such as decisions that release information into the public domain.
Adrian Vermeule & Eric A. Posner, Accommodating Emergencies, in The Constitution in Wartime: Beyond Alarmism and Complacency 55 (Mark Tushnet ed., 2005).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Military, War, & Peace
Type: Book
Adrian Vermeule & Elizabeth Garrett, Institutional Design of a Thayerian Congress, in Congress and the Constitution 242 (Neal Devins & Keith Whittington eds., 2005).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
Type: Book
Adrian Vermeule, Libertarian Panics, 36 Rutgers L. Rev. 871 (2005).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
,
National Security Law
Type: Article
Abstract
Symposium: Free Speech in War Time Conference. In a standard analysis, the history of civil liberties is characterized by a series of security panics. A range of mechanisms - cognitive heuristics and biases, various forms of cascading and herding, conformity and preference falsification, and so on - cause periodic panics in which aroused publics demand repressive measures to curtail the civil liberties of perceived enemies of the nation, particularly noncitizens or other outsiders. Government officials may themselves panic, or will at least supply the panicky measures that constituents demand. The standard remedy is to urge changes to legal doctrine or institutions, in order to curtail government's power to repress civil liberties in response to security panics. The standard model of security panics has been criticized on several grounds. Sometimes security panics are justified, even if produced by disreputable mechanisms; fear can motivate beneficial action as well as detrimental action. In any event, legal doctrines, and perhaps even institutional design, will prove incapable of constraining a genuinely panicked public. In what follows I will sketch a different criticism of the standard model. Even if that model is right as far as it goes, it is fatally incomplete. My central claim is that the mechanisms underlying security panics have no necessary or inherent pro-security valence. The very same mechanisms are equally capable of producing libertarian panics: episodes in which aroused publics become irrationally convinced that justified security measures represent unjustified attempts to curtail civil liberties. I will suggest that libertarian panics have been a regular occurrence in American history, and that we may be living through one now, in the form of a widespread and thoroughly irrational, even hysterical, reaction to small legal changes adopted after 9/11. Indeed, the tendency to diagnose the existence of a security panic can itself be symptomatic of a libertarian panic. The existence of libertarian panics undermines the institutional reforms urged by the advocates of the standard model. The very reforms that would minimize the risks and harms of security panics will maximize the risks and harms of libertarian panics. The institutional-design problem, then, is to optimize in light of these offsetting risks; whatever legal and institutional arrangements turn out to be optimal, they will necessarily prove less protective of civil liberties than the arrangements favored by advocates of the standard model.
Adrian Vermeule, The Compensation Clause, in The Heritage Guide to the Constitution 78 (David Forte ed., 2005).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Congress & Legislation
Type: Book
Adrian Vermeule, The Judiciary is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. Contemp. Legal Issues 549 (2005).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Judges & Jurisprudence
,
Statutory Interpretation
Type: Article
Adrian Vermeule, Three Strategies of Interpretation, 42 San Diego L. Rev. 607 (2005).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Statutory Interpretation
Type: Article
Abstract
Editors' Symposium: What is Legal Interpretation. We may distinguish three styles or strategies of decisionmaking. Under a maximizing approach, the decisionmaker chooses the action whose consequences are best for the case at hand (defining "best" according to some value the decisionmaker holds). Where decisionmakers choose the action that is best relative to constraints, accounting for the direct costs and opportunity costs of decisionmaking, we may call the approach optimizing rather than maximizing. Whereas the maximizer focuses only on the case at hand, the optimizer acts so as to maximize value over an array of cases. In contrast to both approaches, satisficing permits any decision whose results in the case at hand are good enough - although satisficing, like optimizing, may itself represent an indirect strategy of maximization. In this brief essay, I apply these distinctions to legal interpretation. Many approaches to the interpretation of statutes and the Constitution are maximizing approaches that attempt to produce as much as possible of some value the interpreter holds - for example, fidelity to legislative intent or original understandings. Optimizing approaches to interpretation condemn maximizing interpretation as a simpleminded approach that neglects the costs of decisionmaking and the costs of interpretive error. An alternative to both maximizing and optimizing approaches is a satisficing style of interpretation, in which interpreters eschew the search for the very best interpretation (even within constraints), instead selecting an interpretation that is good enough, in light of whatever value theory the interpreter holds. I criticize the maximizing style of interpretation and praise its two competitors. Both the optimizing and satisficing perspectives help to justify some controversial principles of statutory and constitutional interpretation, such as the rule barring resort to legislative history where statutes have a plain meaning, and clause-bound (as opposed to broadly holistic or "intratextualist") interpretation of statutes and the Constitution. Although maximizing interpretation is untenable, neither the optimizing approach nor the satisficing approach is globally best; each is an attractive decision-procedure in some contexts. Where the interpretive stakes are either very low or very high, satisficing is reasonable (whether or not rational in some stronger sense), while optimizing is best suited to medium-stakes decisions.
Eric A. Posner & Adrian Vermeule, Emergencies and Political Change: A Reply to Tushnet, 56 Stan. L. Rev. 1593 (2004).
Categories:
Government & Politics
Sub-Categories:
National Security Law
,
Military, War, & Peace
,
Politics & Political Theory
,
Judges & Jurisprudence
Type: Article
Adrian Vermeule, The Constitutional Law of Congressional Procedure, 71 U. Chi. L. Rev. 361 (2004).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Congress & Legislation
Type: Article
Abstract
The federal constitution contains a set of rules that I will describe as the constitutional law of congressional procedure. These are rules that regulate the internal decisionmaking procedures of Congress; absent specific constitutional provision, they would be subject to the authority of each House to "determine the Rules of its Proceedings." The constitutional law of congressional procedure encompasses the long catalogue of provisions in Article I, Section 4-5, which includes rules for assembling the legislature, selecting its officers, and disciplining its members; voting and quorum rules; rules governing the transparency of deliberation and voting; and a range of other provisions. It also encompasses other important rules scattered elsewhere in Articles I and II, such as the Origination Clause, special quorum rules for supermajority voting, and the special procedures for overriding a presidential veto. The constitutional law of congressional procedure has rarely been analyzed as an integrated body of rules, largely because of historical quirks in the relevant sectors of political science and constitutional law. The article's project is to examine this body of rules as a unified topic that is central to the constitutional design of legislative power. The project is instrumental and prescriptive; the article asks how the Constitution's rules of congressional procedure might be structured to advance a congeries of widely-shared aims. The relevant rules should, among other things, promote congressional deliberation that is well-informed and cognitively undistorted, minimize the principal-agent problems inherent in legislative representation, and encourage technically efficient use of constrained legislative resources, especially time. The difficult enterprise is not stating the aims to which well-designed legislative procedure should conduce, but rather negotiating the inevitable tradeoffs between and among them. Part I surveys the methodological problems that constitutional framers designing legislative procedure must confront, especially the key problem whether and when rules of legislative procedure should be promulgated in the Constitution itself, or instead be committed to the discretion of future congresses through a general grant of rulemaking power. Part II considers in turn the timing of congressional sessions, the admission and expulsion of legislators, the selection of legislative officers, voting and quorum rules, the transparency of legislative deliberation and voting, the rule barring the Senate from originating revenue bills, and the question whether Congress may enact binding statutes that prescribe internal rules for the two Houses taken separately. This Part also considers rules of legislative procedure that appear in state and foreign constitutions, and whose absence from our own itself poses interesting puzzles. Examples are rules requiring three readings before a bill may be enacted, and rules that bar the introduction or enactment of bills at the close of the legislative session. Throughout Part II, the aim is to identify design defects, to evaluate alternatives and innovations found in state and foreign constitutions, and to propose interpretive choices or constitutional reforms that might improve the constitutional law of congressional procedure.
Eric A. Posner & Adrian Vermeule, Transitional Justice as Ordinary Justice, 117 Harv. L. Rev. 761 (2004).
Categories:
International, Foreign & Comparative Law
,
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Developing & Emerging Nations
,
Comparative Law
,
Legal History
Type: Article
Abstract
Theorists of transitional justice study the transition measures used, or eschewed, by new democracies that succeed communist or authoritarian regimes - measures including trials, purges, lustration, reparations, and truth commissions. The theorists tend to oppose transitional measures, portraying them as illiberal and as a distraction from the task of consolidating new democracies. In this Article we argue against that view. The critics of transitional justice have gone wrong by overlooking that transitional measures are common in consolidated legal systems, which themselves constantly undergo political and economic shocks resulting in transitions of greater or lesser degree. Ordinary justice has developed a range of pragmatic tools for managing transitions. Consolidated democracies use trials, purges and reparations to accomplish valuable forward-looking goals without allowing illiberal repression; new democracies can and should use those tools also. Because transitional justice is continuous with ordinary justice, there is no reason to treat transitional-justice measures as presumptively suspect, on either moral or institutional grounds.
Eric A. Posner & Adrian Vermeule, Accommodating Emergencies, 56 Stan. L. Rev. 605 (2003).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
National Security Law
Type: Article
Abstract
There are two main views about the proper role of the Constitution during national emergencies. We label them the "accommodation" view and the "strict" view. The accommodation view holds that the Constitution should be relaxed or suspended during an emergency. The strict view holds that constitutional rules are not, and should not be, relaxed during an emergency. The Constitution should be enforced "strictly" so that both civil liberties and government interests, such as national security, can be appropriately balanced. In this paper we critique the strict view. Defenders of the strict view have proposed two major rationales for their position. The first is institutional: emergencies work like a ratchet, so that constitutional protections are reduced in emergencies, while after the emergency is over the enhancement of constitutional powers is either maintained, or not fully eliminated. The second rationale is psychological: during an emergency, people panic, and when they panic they support policies that are unwise and excessive. Relaxation of constitutional protections would give free rein to the panicked reaction, when what is needed is constraint. The ratchet theory and the panic theory have become fixed points in the debate about emergency powers, yet have escaped rigorous analysis. As we will show, both theories suffer from insuperable conceptual, normative, and empirical difficulties. The ratchet theory lacks a mechanism that permits constitutional powers to rise and prevents them from falling, and makes implausible assumptions about the rationality of individuals who consent to constitutional changes during emergencies. The panic theory assumes that people can, while panicked, get outside themselves and constrain their own fear. Although people and officials panic, we have found little evidence that constitutions or other laws or institutions can control the panic, and cause people to lose their fear, or else choose, while panicked, laws that they would choose if they were not panicked. Finally, defenders of either theory do not examine their normative premises sufficiently: it is not clear that panics and ratchets, if they occur, are bad.

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