Dubious Morality of Modern Administrative Law

Richard A. Epstein is the Laurence A Tisch Professor of Law, New York University School of Law; the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution; the James Parker Hall Distinguished Service Professor of Law Emeritus, and Senior Lecturer at the University of Chicago. He is the author of many books including Takings: Private Property and the Power of Eminent Domain (1985); Simple Rules for a Complex World (1995); Design for Liberty: Private Property, Public Administration, and the Rule of Law (2011); The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2014). He is a member of the American Academy of Arts and Sciences since 1985, a winner of the Bradley Prize (2011); the recipient of honorary degrees from the University of Gent and the University of Siegen. He works in a wide variety of academic areas, and is a regular columnist and radio commentator.

n 2014, Columbia Law School professor Philip Hamburger posed the question 'Is administrative law unlawful?' in a book of that title. Now Hamburger’s New York neighbor Professor Richard Epstein, of New York University Law School, asks whether modern administrative law is immoral. Both answer in the affirmative. . . . Drawing upon Lon Fuller’s classic treatise The Morality of Law, Epstein considers whether modern administrative law satisfies Fuller’s prescriptions for a moral legal order. And as Epstein’s title suggests, this is a dubious proposition: 'Fuller’s steely insistence on legal coherence, clarity, and consistency, coupled with his strong condemnation of retroactive laws, does not mesh with modern administrative law.' This is quite a problem, for the features Fuller identified were not merely advisory, but 'the minimum requisites for the rule of law.' Insofar as modern administrative law violates these principles, it is, in one sense, immoral and needs to be reformed.

• About the Manhattan InstituteAbout the AuthorIntroduction: An Accidental BookPART I:THE DEBATE OVER THE MODERN ADMINISTRATIVE STATEA Frame of Reference for All Administrative LawRule-of-Law BasicsFuller on the Rule of LawFuller’s Notable OmissionsThe Empirical Link Between Substance and ProcedurePropertyFreedom of ContractEminent DomainPART II:THE TRADITIONAL APPROACH TO ADMINISTRATIVE LAWThe Founding Period The 19th and Early 20th CenturiesThe 1935 Turning PointThe Framework Applied In Modern TimesBias and the Right to Be Heard GuidancesNondelegationThe Delegation of Benefit DistributionsPART III:THE CHEVRON SYNTHESISSection 706(a) of the Administrative Procedure ActThe Chevron Two Step Navigable WatersWeyerhaeuser v. U.S. Fish & Wildlife ServiceThe Major Question DiversionMCI Telecommunications Corp. v. AT&TFDA v. Brown & WilliamsonWhitman v. American Trucking AssociationMassachusetts v. EPAKing v. BurwellPART IV:CHEVRON LITESkidmoreSeminole Rock and AuerGloucester County KisorRetroactivity and the Reversal of Longstanding PositionsFundamental ChoicesChenery I and Chenery IIChamber of Commerce v. United States Department of LaborPART V: QUESTIONS OF FACT UNDER THE ADMINISTRATIVE PROCEDURE ACTArbitrary, Capricious, or an Abuse of DiscretionTraditional Agency ActionThe Pipeline CasesConclusionTables of CasesGeneral Index