Adrian Vermeule, Rules, Commands and Principles in the Administrative State, 130 Yale L.J. F. 356 (Jan. 6, 2021).
Abstract: In the theory of the administrative state, a central thread of debate has involved the effect of increasing economic and social complexity on the form of legal instruments. Drawing upon work by Pound, Schmitt and Dworkin, I show that the first two both assumed that the administrative state would increasingly abandon general rules in favor of ad hoc administrative commands — a development that the early Pound welcomed but that Schmitt feared. Ronald Dworkin, by contrast, predicted that the increasing complexity of the modern state would produce ever-greater reliance on relatively abstract legal principles rather than either rules or ad hoc commands. Dworkin’s prediction has largely been borne out in administrative law, particularly the law of judicial review of agency action. That body of law has developed over time by turning to abstract and general principles of rationality and procedural validity to maintain the public edifice of legality.