This year has been an eventful one for administrative law, to put it mildly. We have had a change in presidential administration, with an accompanying focus on deregulation across the federal bureaucracy and mission re-orientation at a number of federal agencies. One agency (the CFPB) currently has dueling acting directors—one appointed by the outgoing agency head and the other by the new president. Congress has successfully invoked the Congressional Review Act to invalidate a number of substantial regulations promulgated during the final months of the Obama Administration. Various federal judges continue to criticize administrative law’s deference doctrines, culminating with the confirmation of a new Supreme Court Justice (Neil Gorsuch) who as a circuit judge expressed constitutional concerns about Chevron deference.
Administrative law scholars have also been busy. To get a taste of the great scholarship produced this year, check out The Regulatory Review’s top-50 posts in 2017 (here), Jotwell’s dozen administrative law reviews this year (here), and my AdLaw Bridge Series reviews and monthly SSRN most-downloaded posts in 2017 (both collected here). My co-bloggers and I here at Notice and Comment have had a busy year with nearly 500 posts, including a number of terrific guest posts on current developments in administrative law and regulatory practice. Having D.C. Circuit Judge Stephen Williams blogging about his new book The Reformer was a personal highlight (collected posts here). Thanks to the members of the ABA Section of Administrative Law and Regulatory Practice and the terrific editors of the Yale Journal on Regulation for your continued support of the blog.
Publication of Gillian Metzger’s Supreme Court Term Foreword in the Harvard Law Review was arguably this year’s biggest moment in administrative law scholarship. Provocatively titled 1930s Redux: The Administrative State Under Siege, Metzger’s Foreword observes a growing criticism of the modern administrative state and distinguishes between “anti-administrativists” and “those who are committed to the administrative project.” The Foreword was accompanied by two thoughtful responses: Confessions of an “Anti-Administrativist”, by my co-blogger Aaron Nielson; and A Bureaucracy—If You Can Keep It, by my fellow Jotwell contributor Mila Sohoni. Even Justice Gorsuch took notice, as he discussed the Foreword in his keynote address at the Federalist Society National Lawyers Convention. And Sheldon Gilbert of the Institute for Justice designed a fun “anti-administrativist” mug (pictured above) that you can order here.
Metzger’s Foreword is an important theoretical and doctrinal contribution to the administrative law literature. So I’m glad that it has received a lot of attention and helped spark a more vigorous debate about the future of the federal regulatory state.
But another article posted in 2017, also forthcoming in the Harvard Law Review, has received less attention yet is no less noteworthy: Cass Sunstein and Adrian Vermeule’s The Morality of Administrative Law. (For the record, although U.S. administrative law professors have largely not grappled with the article yet, it did not escape notice from a prolific scholar (Paul Daly) across the pond.) Here’s the abstract from the article’s current draft on SSRN:
As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.
As I noted in my last SSRN reading list, this article is an absolute tour de force; one could easily teach an entire administrative law course based on the article. In this article, Sunstein and Vermeule apply Lon Fuller’s internal-morality-of-law framework to administrative law, surveying its application to core doctrines and principles in administrative law. In so doing, they help situate recent criticisms of administrative law within the internal-morality framework and bring a fresh perspective on the wisdom of a number of administrative law doctrines.
In my opinion, most of the recent criticisms of administrative law doctrines have suffered from the lack of a coherent underlying theory. Although I doubt Sunstein and Vermeule would consider themselves “anti-administrativists,” their article does provide a much firmer, Fullerian theoretical foundation for recent criticisms. To be sure, near the end of the article they explain why this foundation may still be lacking and why, as a normative matter, the theory could apply to agency actors but should not apply to judicial actors. But this Fullerian account merits much more serious attention and debate. If you haven’t had a chance to read the article yet, definitely download the current draft from SSRN here and give it a read before the new year.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.