Law s Abnegation

Author: Adrian Vermeule
Publisher: Harvard University Press
ISBN: 0674971442
Format: PDF, ePub, Mobi
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Adrian Vermeule argues that the arc of law has bent steadily toward deference to the administrative state, which has greater democratic legitimacy and technical competence to confront issues such as climate change, terrorism, and biotechnology. The state did not shove lawyers and judges out of the way; they moved freely to the margins of power.

Creating the Administrative Constitution

Author: Jerry L. Mashaw
Publisher:
ISBN: 9780300180022
Format: PDF, Mobi
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This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Jerry Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution’s first century created an administrative constitution hardly hinted at in its formal text. This book, in the author’s words, will "demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic."

Mechanisms of Democracy

Author: Adrian Vermeule
Publisher: Oxford University Press
ISBN: 9780199745098
Format: PDF, Kindle
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What institutional arrangements should a well-functioning constitutional democracy have? Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. In this book, Adrian Vermeule moves beyond these debates, changing the focus to institutional design writ small. In established constitutional polities, Vermeule argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly. Drawing upon a range of social science tools from economics, political science, and other disciplines, Vermeule carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.

Tocqueville s Nightmare

Author: Daniel R. Ernst
Publisher: Oxford University Press (UK)
ISBN: 0199920869
Format: PDF
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De Tocqueville once wrote that 'insufferable despotism' would prevail if America ever acquired a national administrative state. Between 1900 and 1940, radicals created vast bureaucracies that continue to trample on individual freedom. Ernst shows, to the contrary, that the nation's best corporate lawyers were among the creators of 'commission government'; that supporters were more interested in purging government of corruption than creating a socialist utopia; and that the principles of individual rights, limited government, and due process were designed into the administrative state.

Judging Under Uncertainty

Author: Adrian Vermeule
Publisher: Harvard University Press
ISBN: 9780674022102
Format: PDF, Docs
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In this book, Adrian Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. He argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty. In view of their limited information and competence, judges should adopt a restrictive, unambitious set of tools for interpreting statutory and constitutional provisions.

After the Rights Revolution

Author: Cass R. Sunstein
Publisher: Harvard University Press
ISBN: 9780674009097
Format: PDF, Docs
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In the twentieth century, American society has experienced a "rights revolution": a commitment by the national government to promote a healthful environment, safe products, freedom from discrimination, and other rights unknown to the founding generation. This development has profoundly affected constitutional democracy by skewing the original understanding of checks and balances, federalism, and individual rights. Cass Sunstein tells us how it is possible to interpret and reform this regulatory state regime in a way that will enhance freedom and welfare while remaining faithful to constitutional commitments. Sunstein vigorously defends government regulation against Reaganite/Thatcherite attacks based on free-market economics and pre-New Deal principles of private right. Focusing on the important interests in clean air and water, a safe workplace, access to the air waves, and protection against discrimination, he shows that regulatory initiatives have proved far superior to an approach that relies solely on private enterprise. Sunstein grants that some regulatory regimes have failed and calls for reforms that would amount to an American perestroika: a restructuring that embraces the use of government to further democratic goals but that insists on the decentralization and productive potential of private markets. Sunstein also proposes a theory of interpretation that courts and administrative agencies could use to secure constitutional goals and to improve the operation of regulatory programs. From this theory he seeks to develop a set of principles that would synthesize the modern regulatory state with the basic premises of the American constitutional system. Teachers of law, policymakers and political scientists, economists and historians, and a general audience interested in rights, regulation, and government will find this book an essential addition to their libraries.

Permanent States of Emergency and the Rule of Law

Author: Alan Greene
Publisher: Bloomsbury Publishing
ISBN: 1509906177
Format: PDF, ePub, Docs
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Permanent States of Emergency and the Rule of Law explores the impact that oxymoronic 'permanent' states of emergency have on the validity and effectiveness of constitutional norms and, ultimately, constituent power. It challenges the idea that many constitutional orders are facing permanent states of emergency due to the 'objective nature' of threats facing modern states today, arguing instead that the nature of a threat depends upon the subjective assessment of the decision-maker. In light of this, it further argues that robust judicial scrutiny and review of these decisions is required to ensure that the temporariness of the emergency is a legal question and that the validity of constitutional norms is not undermined by their perpetual suspension. It does this by way of a narrower conception of the rule of law than standard accounts in favour of judicial review of emergency powers in the literature, which tend to be based on the normative value of human rights. In so doing it seeks to refute the fundamental constitutional challenge posed by Carl Schmitt: that all state power cannot be constrained by law.

The Executive Unbound

Author: Eric A. Posner
Publisher: Oxford University Press
ISBN: 9780199831753
Format: PDF, ePub
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Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done? The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers. But there is nothing in our system of checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority straight through to the Obama presidency. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

Is Administrative Law Unlawful

Author: Philip Hamburger
Publisher: University of Chicago Press
ISBN: 022611645X
Format: PDF, ePub, Mobi
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Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.

Independent Agencies in the United States

Author: Marshall J. Breger
Publisher: Oxford University Press, USA
ISBN: 0199812128
Format: PDF, Mobi
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It is essential for anyone involved in law, politics, and government, as well as students of the governmental process, to comprehend the workings of the federal independent regulatory agencies of the United States. Occasionally referred to as the "headless fourth branch of government," these agencies do not fit neatly within any of the three constitutional branches. Their members are appointed for terms that typically exceed those of the President, and they cannot be removed from office in the absence of some sort of malfeasance or misconduct. They wield enormous power over the private sector, and they have foreign analogues. In Independent Agencies in the United States, Marshall Breger and Gary Edles provide a full-length study of the structure and workings of federal independent regulatory agencies in the US. This book focuses on traditional multi-member agencies that have a significant impact on the American economy, such as the Securities and Exchange Commission, the Federal Communications Commission, the National Labor Relations Commission, and the Federal Trade Commission. This work recognizes that the changing kaleidoscope of modern life has led Congress to create idiosyncratic administrative structures consisting of independent agencies squarely within the Executive Branch, including government corporations and government-sponsored enterprises, to establish a new construct of independence to meet the changing needs of the administrative state. In the process, Breger and Edles analyze the general conflict between political accountability and agency independence. This book also compares US with EU and certain UK independent agencies to offer a unique comparative perspective. Included is a first-of-its-kind appendix describing the powers and procedures of the more than 35 independent US federal agencies, with each supplemented by a selective bibliography of pertinent materials.