{"title":"Bureaucracy and Distrust: Landis, Jaffe and Kagan on the Administrative State","authors":"Adrian Vermeule","doi":"10.2139/SSRN.2863112","DOIUrl":null,"url":null,"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.","PeriodicalId":48320,"journal":{"name":"Harvard Law Review","volume":"130 1","pages":"2463-2488"},"PeriodicalIF":3.5000,"publicationDate":"2016-11-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"3","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Harvard Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.2863112","RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 3
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.
期刊介绍:
The Harvard Law Review is a student-run organization whose primary purpose is to publish a journal of legal scholarship. The Review comes out monthly from November through June and has roughly 2,500 pages per volume. The organization is formally independent of the Harvard Law School. Student editors make all editorial and organizational decisions and, together with a professional business staff of three, carry out day-to-day operations. Aside from serving as an important academic forum for legal scholarship, the Review has two other goals. First, the journal is designed to be an effective research tool for practicing lawyers and students of the law. Second, it provides opportunities for Review members to develop their own editing and writing skills. Accordingly, each issue contains pieces by student editors as well as outside authors. The Review publishes articles by professors, judges, and practitioners and solicits reviews of important recent books from recognized experts. All articles — even those by the most respected authorities — are subjected to a rigorous editorial process designed to sharpen and strengthen substance and tone.