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Delegating to Enemies

36 Pages Posted: 7 Mar 2012 Last revised: 13 Apr 2012

Jacob E. Gersen

Harvard University

Adrian Vermeule

Harvard Law School

Date Written: March 7, 2012

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.

Suggested Citation

Gersen, Jacob E. and Vermeule, Adrian, Delegating to Enemies (March 7, 2012). Columbia Law Review, Forthcoming; Harvard Public Law Working Paper No. 12-11. Available at SSRN: https://ssrn.com/abstract=2017974 or http://dx.doi.org/10.2139/ssrn.2017974

Jacob E. Gersen

Harvard University ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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