Review Essay: The Dubious Morality of Modern Administrative Law by Richard Epstein

46 Pages Posted: 15 Jun 2021

Date Written: June 11, 2021

Abstract

Philip Hamburger published Is Administrative Law Unlawful? in 2014. That book triggered responses by several famous scholars, including Gillian Metzger, Cass Sunstein and Adrian Vermeule, that attempted to justify and defend administrative law. Sunstein and Vermeule, in particular, published an article and then a book. They argued that administrative law is “moral,” using the approach of Lon Fuller’s classic work of legal philosophy The Morality of Law. Jumping into the fray, Richard Epstein has written an important new book, The Dubious Morality of Modern Administrative Law. Perhaps surprisingly, Epstein comes off as a bit of centrist, compared to the other authors writing on the topic. In his book Epstein propounds a positive thesis that the current structure of judicial review of administrative actions scrutinizes the agency choice of policy far more intensively than agency interpretation of law. Epstein also advances the normative thesis that this is backwards, and that courts should review agency interpretations of law de novo, while giving some deference to agency policy choice. I show that whereas Epstein’s normative claim may have some bite, his positive claim is unproven. Epstein’s analytical approach might be more interesting than his thesis but is also far more cumbersome. There are three core elements to his analytical style. First, as he explicitly states, he thinks the right way to do administrative law is to evaluate the substantive policy choices at issue. Second, when discussing adjudication or the role of guidance documents Epstein writes like a traditional administrative law scholar. He spends most of his words concentrating on process and fairness. But when Epstein discusses most other topics he sounds like a regulation scholar, approaching administrative law by considering in detail whether the administrative agency’s choice of a substantive regulation is good or not. Third, Epstein argues that when one evaluates a regulation to see whether it comports with the rule of law one should apply the eight criteria of legal morality from Lon Fuller’s work, augmented by the right to an unbiased decisionmaker and a right to be heard, plus the substantive values protected by the classical liberal legal order of contract, property, and protections against eminent domain, leavened with some measure of Burkean respect for administrative institutions that have operated successfully for decades. This approach allows Epstein to talk about almost everything when discussing the morality of administrative law. However, the huge number of moving parts in his methodology renders it both impossible to predict what Epstein will think about any particular case, and also wildly impractical for anyone else to use.

Keywords: morality of law, administrative law, regulation, Richard Epstein, judicial review

JEL Classification: k23, Y3

Suggested Citation

Spitzer, Matthew L., Review Essay: The Dubious Morality of Modern Administrative Law by Richard Epstein (June 11, 2021). Northwestern Law & Econ Research Paper No. 21-04, Northwestern Public Law Research Paper No. 21-16, Available at SSRN: https://ssrn.com/abstract=3865308 or http://dx.doi.org/10.2139/ssrn.3865308

Matthew L. Spitzer (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8434 (Phone)

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