Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State

27 Pages Posted: 2 Nov 2016 Last revised: 5 Apr 2017

Date Written: November 2, 2016

Abstract

What, if anything, legitimates the administrative state? In this Essay, for the Harvard Law Review’s special issue celebrating the bicentennial of Harvard Law School, I examine three attempts to solve the administrative state’s legitimation problem, offered respectively by James Landis, by Louis Jaffe, and by Elena Kagan. The solutions have a common theme and a common structure: each appeals more or less explicitly to “independence.” Each attempts to find a remedy for distrust of unchecked administrative power, and each attempts to do so by identifying “independent” institutions that will monitor and oversee the bureaucracy. However, each compromises their claims in institutional circumstances where the force of competing values becomes particularly strong. The result is that each theorist ends up adopting a kind of roughly optimizing pluralism of values for the administrative state, a pluralism in which “independence” falls out of the picture as such, and in which the benefits of expertise, political accountability, and legalism all have some claims. Happily, this pluralist, rough, and imperfectly-optimizing approach seems adequate to legitimate the administrative state, at least in the sociological sense of legitimation as public acceptance.

Suggested Citation

Vermeule, Adrian, Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State (November 2, 2016). Harvard Law Review, 2017, Forthcoming; Harvard Public Law Working Paper No. 17-02. Available at SSRN: https://ssrn.com/abstract=2863112 or http://dx.doi.org/10.2139/ssrn.2863112

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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