Friday, January 20, 2017

On Adrian Vermeule's Law's Abnegation

Sandy Levinson

For the Symposium on Adrian Vermeule, Law's Abnegation.

This is an exceptional book that certainly deserves a wide readership within the community of academic lawyers and legal theorists.  I really don’t have very much to say about it of a critical nature, in part because I am most certainly not an expert in administrative law, the central topic of the book.  But I assume that I am part of the target audience, inasmuch as I’m interested not only in constitutional law, but also the broad contours of American constitutional and legal development, and the book offers an extremely interesting and challenging take on those topics. 
            The book both begins and ends with reference to Ronald Dworkin; indeed, the title itself is both a play on and critique of one of Dworkin’s major books, about “law’s empire” and the crucial role that courts play as “fora of principle.”  Vermeule, on the other hand, is arguing that the modern state is primarily an administrative state, where most public policy is in fact made, albeit under often very broad delegation from Congress, by administrative agencies.  More to the point is the fact that these agencies have been accorded more and more discretion by the judiciary.  What is so fascinating about Vermeule’s thesis—and sure to spark some vigorous debate (though not by me)—is that “law’s abnegation” is not the product of “external” political or social forces that seized control away from formerly powerful courts.  Instead, as he puts it, it is a product of a basically common-law process of doctrinal analysis and development. The “chastened and self-effacing version of law [Vermeule is describing] is itself a product of law’s processes, working themselves pure.”   That is, it is judges themselves who have recognized, over the past seventy-five years or so since the seminal case of Crowell v. Benson that begins the book, that it simply makes good sense, in terms of accepted legal principles, to defer to administrative agencies except under unusual circumstances.
            Vermeule argues that the extent of law’s abnegation is insufficiently recognized, not least because academics who teach (and edit casebooks on) administrative law tend to overemphasize (or misinterpret) a relatively few outlier cases in which the judiciary seems to discipline agencies instead of recognizing the overwhelming array of cases, both within the Supreme Court and “inferior” federal courts, that submit to decisions made by the agencies.  What is especially interesting, relative to the Dworkinian program of emphasizing “right answers” to all legal questions, is that such deference, almost by definition, requires judges to accept as perfectly acceptable answers that they themselves disagree with in terms of first-order validity.  Instead, they accept what by stipulation are “wrong answers” because administrative agencies are entitled to deference with regard to choosing answers.  Vermeule notes that Dworkin never once wrestled with the problem of administrative law or the administrative state.  He preferred to discuss a relatively few cases, almost none of them truly exemplary of the realities of modern statecraft and the ever-diminishing role of courts and judges.  Vermeule therefore offers a very powerful critique of the remarkably limited range of Dworkin’s actual reference to contemporary law even as he claims, presumably sincerely, to be working within the Dworkinian categories of looking for the “best fit” of decided caselaw and then the most attractive justification for what the fit reveals. 
            Along the way, he also delivers quite devastating critiques of three prominent defenders of what might be termed the “old order” of critics of the administrative state, Jeremy Waldron, Philip  Hamburger, and Gary Lawson.  The principal thrust of Vermeule’s argument is precisely that the developments they deplore are in fact “internal” to the operation of the separation of powers systems they claim to privilege and to the disciplined legal analysis of the judges whose roles they want to re-invigorate.
             The book is also a fascinating meditation, in many ways, on the perplexities attached to decisionmaking under conditions of significant uncertainty.  Vermeule is highly skeptical of efforts to cabin such decisionmaking within one or another favored methodology, including rigorous cost-benefit analysis.  Indeed, one of the interesting features of his argument is the significant criticism directed at his friend and sometime co-author Cass Sunstein, who has far more faith in truly technocratic reasoning than Vermeule exhibits. An important part of Vermeule’s own argument is that decisionmaking under uncertainty leads one necessarily to adopt complex strategies of “satisficing” rather than “optimizing,” which means, among other things, that analysts overly committed to rationalist criteria linked to the latter will regard “satisficing” decisions as “arbitrary” in that no truly “convincing reason” is offered for preferring A to B.  Vermeule offers a fascinating defense of such “arbitrariness”; he would limit the term to situations where an agency simply refuses to present any reasons at all, rather than situations where the reviewing court is unpersuaded.
            A subtext of the book, made manifest in the last chapter, is the desirability of limiting the power of basically generalist lawyers, including those particular generalists who inhabit the judiciary, in favor of decisionmaking by more knowledgeable experts who can draw on a variety of disciplines other than law.  For Vermeule, the question is always whether lawyers and law-dominated institutions offer much marginal value when making the kinds of complex decisions necessary to a modern society, and he tends to be skeptical.  “Law’s former empire is, increasingly, an outpost on the margins of the administrative imperium,” and there is no turning back from this reality.  It is not clear whether Vermeule has genuine faith in the expertise of administrative decisionmakers—the classic defense of the administrative state offered by earlier denizens of the Harvard Law School like Felix Frankfurter and James Landis—or, instead, whether he is simply impatient with the excessive claims to authority of not-very-knowledgeable lawyers-who-become-judges and therefore are prone to meddle in areas about which they really know almost nothing.  Vermeule’s colleague Mark Tushnet famously criticized the tendency of lawyers to think that they can master astrophysics (and all other disciplines) in a weekend of study.  I suspect that Vermeule agrees with Tushnet on this score.  Based on Vermeule’s prior writings, one might suspect that he has little more regard for aggressive judicial review than does Tushnet, who  called for its abolition in his book Taking the Constitution Away from the Courts.  One might also compare Vermeule to his former University of Chicago colleague Richard Posner, who has also repeatedly expressed his doubts about the actual value of most formal legal analysis.  And, of course, one should read this new book within the context of his earlier flamboyant book co-authored with another former Chicago colleague, Eric Posner, The Executive Unbound:  After the Madisonian Republic.  What made that book so noteworthy—and, for some, scandalous—was its embrace of Carl Schmitt’s critiques of classical rule-of-law notions in favor of almost unlimited executive discretion (thus the “unbound executive”).  One must assume that contemporary Trumpistas who want to reverse Chevron and other testaments to the power of the modern administrative state would be unhappy with Vermeule’s overall argument.

In my sunset years, one of my regrets is that I never took the time to think systematically (or to teach, which is the best inducement to systematic thought) about administrative law.  I took  a course on it at Stanford some 45 year ago (from Paul Bator, who was visiting Stanford from Harvard), but otherwise have rarely thought about its intricacies.  The only time I actually ever engaged with the subject as a teacher was at the Central European University in Budapest about fifteen years ago, where I was charged with teaching a four-class segment on American administrative law.  For that, I read a really terrific book by Peter Strauss Administrative Justice in the United States.  And I decided to present my students, from all parts of what was called the “region” of Eastern Europe, extending into many of the former Soviet republics, Marbury v. Madison, which is extremely interesting as a nascent administrative law case.  (That is the last time I’ve taught Marbury, whose importance I think is grotesquely overestimated in the standard American con law course.)  Vermeule’s book is an added reminder of the immense importance of administrative law not only practically speaking, which should go without saying, but also for anyone seriously interested in basic theories of law, including the mysteries of “the rule of law” and the deference owed to various decisionmakers along the way.   

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