I'm not a lawyer and have no standing, but doesn't this concern the cluster of issues Adrian Vermeule discussed, forcefully, in _Law's Abnegation_ (2016). And there, it seems (I emphasize "seems" because what the hell do I know), Levinson argues that the administrative state 1/
https://twitter.com/GregStohr/status/1454171688573325313
is here to stay, largely because lawyers have welcomed it (hence "abnegation"). Sandy Levinson says:
'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” 2/
'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” 2/
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 ... is itself a product of law’s 3/
processes, working themselves pure.” That is, it is judges themselves who have recognized … that it simply makes good sense, in terms of accepted legal principles, to defer to administrative agencies ....
…
Vermeule … offers a very powerful critique of the remarkably 4/
…
Vermeule … offers a very powerful critique of the remarkably 4/
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. 5/
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 6/
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. 7/
The book is also a fascinating meditation, in many ways, on the perplexities attached to decisionmaking under conditions of significant uncertainty.'
All this and more in a fascinating symposium on Vermeule at _Balkinization_:
balkin.blogspot.com/2017/01/sympos…
8/
All this and more in a fascinating symposium on Vermeule at _Balkinization_:
balkin.blogspot.com/2017/01/sympos…
8/
Would be very interested in hearing from others. 9/
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