The Volokh Conspiracy

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Volokh Conspiracy

Is Administrative Law Immoral?

A review of Richard Epstein's latest book: The Dubious Morality of Modern Administrative Law


In the latest issue of National Review, I review Richard Epstein's latest book, The Dubious Morality of Modern Administrative Law.

Here's a taste of my review:

In 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.

Although framing their inquiries in different ways, both Hamburger and Epstein question whether contemporary administrative law is consistent with the rule of law. This is not an idle question. The laws that govern many individuals' lives and livelihoods are the product not of the legislature but of administrative agencies exercising delegated power with inconsistent legal or political accountability. . . .

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.

The full review is here.