Introduction: Administrative Lawmaking in the Twenty-First Century

It is always hard to map a river while sailing midstream, but the current state of administrative law is particularly resistant to neat tracing. Until the past few years, administrative law and scholarship was marked by pragmatic compromise: judicial deference on questions of law (but not too much and not all the time) and freedom for agencies on questions of politics and policy (but not to an unseemly degree). There was disagreement around the edges—and some voices in the wilderness calling for radical change—but they operated within a shared framework of admittedly unstated, and perhaps conflicting, assumptions about the administrative state and the rule of law Today, there is a sense that this pragmatic consensus is becoming unstable. Critics of the administrative state and its constitutional legitimacy seek a return to an original settlement of limited, separated powers. At the other end of the spectrum, scholars who applaud lawyers’ retreat from interfering with administrative governance call for a more complete abnegation. In between these poles lies uncertainty or fresh attempts to bolster a center that threatens no longer to hold. With so much in administrative law and theory up for grabs, the Notre Dame Law Review’s Symposium “Administrative Lawmaking in the Twenty-First Century” could not be timelier

Reading Statutes in the Common Law Tradition

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters should no longer understand themselves as bearers of the common law tradition. Contemporary debate in statutory interpretation thus offers a choice between continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. This neat frame, however, misses important parts of the picture. This Article argues that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation. More broadly, we need not understand the debate between formalists and dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. There are good reasons — reasons grounded in common law thought — for believing that statutory formalists have a stronger argument than their dynamic critics. Given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the common law tradition and its virtues to persist in our legal system

Neoclassical Administrative Common Law

This essay reviews John Dickinson’s neglected classic, Administrative Justice and the Supremacy of Law in the United States. Writing on the cusp of the New Deal, Dickinson helped establish a mainstream, moderate stance about the shape and legitimacy of the administrative state. A closer reading of this work, which is rich in jurisprudential reflection and historical learning, offers a better idea about the structure, promise, and limits of the doctrinal world he helped create

Teaching Jurisprudence in a Catholic Law School

(Excerpt) Jurisprudence plays an important role in John Breen and Lee Strang’s history of Catholic legal education and in their prescription for its future. Legal philosophy in general, and the natural law tradition in particular, provide a central justification for the existence of distinctive Catholic law schools. They are right to argue so. As part of the broader Catholic intellectual tradition, which emphasizes the unity of knowledge and the eternal significance of mundane practice, natural law philosophy rejects mere vocationalism. It can provide the animating form and direction of a legal education that is more than one damn thing after another in preparation for the bar

Reading Statutes in the Common Law Tradition

There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are obsolete and inimical to a modern legal system of separated powers. They argue that because the legal center of gravity has shifted from courts to complex statutory regimes, judicial interpreters should no longer understand themselves as bearers of the common law tradition. Contemporary debate in statutory interpretation thus offers a choice between continuity with the common law tradition (and thus, creative statutory interpretation) or formalist interpretation that breaks with that heritage. This neat frame, however, misses important parts of the picture. This Article argues that classical common law jurisprudence in fact offers substantial support for formal theories of interpretation like textualism. In fact, the formalist’s respect for legislative compromise and deference to text or original intent may represent the natural development of a common law tradition that has increasingly linked law with popular custom and consent. By contrast, nonformal approaches to statutory interpretation rely on a partial, controversial vision of the common law tradition. A more complete understanding of traditional common law thought undercuts an important justification for nonformal theories of statutory interpretation. More broadly, we need not understand the debate between formalists and dynamic interpreters as a disagreement about the common law tradition’s continued validity; rather it is an argument over which interpretation of that tradition best suits a modern, complex polity. There are good reasons — reasons grounded in common law thought — for believing that statutory formalists have a stronger argument than their dynamic critics. Given the challenges a complex, pluralistic society poses to developing common law through adjudication, the formalist’s emphasis on legislative primacy may be necessary for the common law tradition and its virtues to persist in our legal system

Reconstructing an Administrative Republic

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States\u27 separation of powers and the public interest. This review essay introduces readers to Michaels\u27 argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid. Second, it asks whether Michaels’ version of separated powers within the administrative state is a worthy successor to the original, and more formal, three-branch version.Neither set of questions admits of easy answers, and even those who disagree with Michaels’ conclusions should readily accede that he clarifies and enriches our understanding of the dilemmas the modern administrative state raises. Constitutional formalists, progressives, and libertarians alike should fear undifferentiated massing of power in the executive branch, a consolidation enabled by a force-multiplying phalanx of privatized actors. For those convinced of the gravity of this situation, the question remains how to address it, and Michaels offers a powerful opening shot

Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule\u27s New Theory

This Review proceeds in three Parts. Part I briefly summarizes Common Good Constitutionalism and provides a more detailed description of four of the book’s distinctive features. Part II critiques Vermeule’s argument in light of the classical tradition’s four essential aspects of law, namely that it is an ordinance of reason, for the common good, made by one who has care of the community, and promulgated. Part III draws on those reflections to respond to Vermeule’s criticisms of work like ours that argues that original-law-based understandings of the Constitution are at home in the classical legal tradition. A Conclusion briefly reflects on the choices facing the classical natural lawyer in the American constitutional order going forward

Enduring Originalism

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the positive turn in originalism. Defenses of originalism in this vein are positive in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: that we regard the framers\u27 law, and any other further lawful changes, as our law today. If we do not, originalism is not the law and perhaps should be abandoned in favor of what is. The Article proceeds as follows. Part I outlines the positive turn in originalism, one of the most important and promising developments in originalist theory in recent years. After noting the approach\u27s benefits, we offer jurisprudential objections to its foundations. Part II explains how the positive turn\u27s appealing form of originalism is better grounded in a broader understanding of the moral point of constitutions. Far from being a musty, sectarian artifact, the classical natural law tradition of reasoning about positive law\u27s moral purpose animated the framers\u27 understanding of our Constitution and provides the most persuasive reason for continued adherence to that original law today. Part III addresses the difficulties that today\u27s nonoriginalist practices present to one normatively committed to original law, while also explaining why the appeal of originalism endures in the face of those challenges

Micro-Symposium on Orin Kerr\u27s \u27A Theory of Law\u27

For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to answer that same question in their own ways. The Green Bag is pleased to be featuring his “A Theory of Law” in its first micro-symposium, and just as pleased with the quality, quantity, and diversity of the responses to the call for papers. Blessed with an abundance of good work but cursed by a shortage of space, we were compelled to select a small set – representative and excellent – of those essays to publish in the Green Bag or its sibling publication, the Journal of Law. We regret that we cannot do full justice to the outpouring of first-rate legal-theoretical commentary we received

Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference. Topics include: History of Seminole Rock Empirical Examinations of Seminole Rock Understanding Seminole Rock Within Agencies Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing Why Seminole Rock Matters Should the Supreme Court Overrule Seminole Rock? Would Overruling Seminole Rock Have Unintended Consequences? What Might the Supreme Court Do? What Might Congress Do? The Future of Seminole Roc