The Rule of Law and the Inevitability of Discretion

9 Pages Posted: 26 Jun 2013  

Peter M. Shane

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: 2013

Abstract

Responding to Richard Epstein's writings on the rule of law in the administrative state, this paper argues that it is impossible to advance a compelling conception of the rule of law that relies entirely on confining government discretion through clear rules. What is needed is a conception of the rule of law rooted in institutional practice, in which "the written documents of law [are] buttressed by a set of norms, conventional expectations, and routine behaviors that lead officials to behave as if they are accountable to the public interest and to legitimate sources of legal and political authority," even when relevant rules are vague and enforcement prospects are remote. Administrative rulemaking may well advance these values better than congressional legislation.

Keywords: administrative law, rule of law, delegation, nondelegation, discretion, Epstein

JEL Classification: K23

Suggested Citation

Shane, Peter M., The Rule of Law and the Inevitability of Discretion (2013). Harvard Journal of Law and Public Policy, Vol. 36, 2013; Ohio State Public Law Working Paper No. 212. Available at SSRN: https://ssrn.com/abstract=2284222

Peter M. Shane (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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