Law and Leviathan

Redeeming the Administrative State

ISBN 9780674278691

Publication date: 09/13/2022

Winner of the Scribes Book Award

“As brilliantly imaginative as it is urgently timely.”
—Richard H. Fallon, Jr., Harvard Law School

“At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto.”
—Frederick Schauer, author of The Proof

A highly original framework for restoring confidence in a government bureaucracy increasingly derided as “the deep state.”

Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? America has long been divided over these questions, but the debate has recently taken on more urgency and spilled into the streets. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed so long as public officials are constrained by morality and guided by stable rules. Officials should make clear rules, ensure transparency, and never abuse retroactivity, so that current guidelines are not under constant threat of change. They should make rules that are understandable and avoid issuing contradictory ones.

These principles may seem simple, but they have a great deal of power. Already, they limit the activities of administrative agencies every day. In more robust form, they could address some of the concerns of critics who decry the “deep state” and yearn for its downfall.

“Has something to offer both critics and supporters…a valuable contribution to the ongoing debate over the constitutionality of the modern state.”
—Review of Politics

“The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow.”
—Wall Street Journal

Praise

This short book is as brilliantly imaginative as it is urgently timely. By identifying an inner morality of administrative law, Sunstein and Vermeule refute the most serious legal and political attacks on the administrative state since the New Deal. The book makes major contributions to the theory of the rule of law.

—Richard H. Fallon, Jr., Story Professor of Law, Harvard Law School
This is a sparkling vindication of the enduring relevance of Lon Fuller’s classic account of the rule of law. It is an exemplary piece of legal scholarship in the way it connects a sensitive exploration of legal doctrine to underlying moral concerns.

—John Tasioulas, Director, Yeoh Tiong Lay Centre for Politics, Philosophy, and Law, The Dickson Poon School of Law, King’s College London
In the face of decades of robust attacks on the administrative state as unconstitutional, immoral, or worse, Sunstein and Vermeule offer a doctrinally careful and theoretically sophisticated defense of pervasive administrative regulation tempered by the kinds of rule of law concerns associated with Lon Fuller’s internal morality of law. At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto.

—Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law
A must-read for critics and defenders of the administrative state.

—Jeffrey Pojankowski, Notre Dame Law School
In this elegant and thoughtful book, Sunstein and Vermeule seek to offer an ‘appealing second best’ on which the administrative state’s friends and foes can agree. Whether they will succeed in that task remains to be seen, but their effort to move us past old debates is exactly right. The pandemic has shown the urgent need for an administrative state that is both lawful and effective, empowered as well as constrained. Sunstein and Vermeule offer us an insightful account of how that uneasy balance is attained through core principles emanant in administrative law.

—Gillian Metzger, Harlan Fiske Stone Professor of Constitutional Law, Columbia Law School
Sunstein and Vermeule pack in a great deal of information, almost a thumbnail course in administrative law…For lawyers, the book provides an easy entry point to the latest developments in a complex and technical field of law...Put[s] forward a new analytical framework for thinking about the direction of the administrative state.

—Terence Check, Cipher Brief
Has something to offer both critics and supporters of the administrative state and is a valuable contribution to the ongoing debate over the constitutionality of the modern state.

—Joseph Postell, Review of Politics
Law and Leviathan is a useful source to learn about the current state of US public law discourse. The reader can find an interesting mapping of concerns and solutions advanced towards developments which—to different degrees and under various labels—have taken place in most Western constitutional systems, as well as within the institutional structures of global governance.

—Angelo Jr Golia, Heidelberg Journal of International Law

Awards

2021, Winner of the Scribes Book Award

Authors

Cass R. Sunstein is Robert Walmsley University Professor at Harvard Law School. Recently named Senior Counselor to the US Department of Homeland Security, he is the author of many books, including Conformity and How Change Happens.
Adrian Vermeule is Ralph S. Tyler, Jr., Professor of Constitutional Law at Harvard Law School. His many books include Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard) and The Constitution of Risk.