Adrian Vermeule

Transitional Justice as Ordinary Justice

Theorists of transitional justice study the transition measures used, or eschewed, by new democracies that succeed communist or authoritarian regimes - measures including trials, purges, lustration, reparations, and truth commissions. The theorists tend to oppose transitional measures, portraying them as illiberal and as a distraction from the task of consolidating new democracies. In this Article we argue against that view. The critics of transitional justice have gone wrong by overlooking that transitional measures are common in consolidated legal systems, which themselves constantly undergo political and economic shocks resulting in transitions of greater or lesser degree. Ordinary justice has developed a range of pragmatic tools for managing transitions. Consolidated democracies use trials, purges and reparations to accomplish valuable forward-looking goals without allowing illiberal repression; new democracies can and should use those tools also. Because transitional justice is continuous with ordinary justice, there is no reason to treat transitional-justice measures as presumptively suspect, on either moral or institutional grounds.

Inside or Outside the System

In a typical pattern in the literature on public law, the diagnostic sections of a paper draw upon political science, economics or other disciplines to offer deeply pessimistic accounts of the motivations of relevant actors in the legal system. The prescriptive sections of the paper, however, then issue an optimistic proposal that the same actors should supply public-spirited solutions. Where the analyst makes inconsistent assumptions about the motivations of actors within the legal system, equivocating between external and internal perspectives, an inside/outside fallacy arises. We identify the fallacy, connect it to an economics literature on the “determinacy paradox,” and elicit its implications for the theory of public law.

Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008

This essay compares crisis governance and emergency lawmaking after 9/11 and the financial meltdown of 2008. We argue that the two episodes were broadly similar in outline, but importantly different in detail, and we attempt to explain both the similarities and differences. First, broad political processes and constraints operated in both episodes to create a similar pattern of crisis governance, in which Congress delegated large new powers to the executive. We argue that this pattern is best explained by reference to the account of lawmaking in the administrative state offered by Carl Schmitt, as opposed to the standard Madisonian view. Second, within the broad constraints of crisis politics, the Bush administration asserted its authority more aggressively after 9/11 than in the financial crisis. Rejecting competing explanations based on legal differences, the nature of the threat, or other factors, we attribute the difference to the Bush administrations loss of popularity and credibility over the period between 2001 and 2008 and to the more salient and divisive distributive effects of financial management.

Chevron Has Only One Step

Chevron, U.S.A. v. Natural Resources Defense Council lays out a two-step process that courts must follow when they review a federal agencys construction of a federal statute. We argue that Chevron, rightly understood, has only one step. The single question is whether the agencys construction is permissible as a matter of statutory interpretation. The two Chevron steps both ask this question, just in different ways, and are thus mutually convertible: any opinion written in terms of one step can be written, without loss of content, in terms of the other step. Chevrons artificial division of a unitary inquiry causes material confusion among commentators and courts, and has no benefits; administrative law should jettison the two-step framework.

Absolute Majority Rules

This article considers absolute majority rules, which require the affirmative vote of a majority of all those eligible to vote in the institution. I compare absolute majority rules to simple majority rules under which only those present and voting are counted, and to simple supermajority rules. Under plausible conditions, absolute majority rules prove superior. Absolute majority rules insure majorities against strategic behaviour by minorities and combine supermajoritarian effects with majoritarian symbolism.

The Parliament of the Experts

In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus?I argue that voting by expert panels is likely, on average, to be an epistemically superior mechanism for determining facts and causation, and for making predictions, than is the substantive judgment of agency heads in rulemaking or adjudication. Nose-counting of expert panels should generally be an acceptable basis for decision under the arbitrary and capricious or substantial evidence tests. Moreover, agencies should be obliged to follow the (super)majority view of an expert panel, even if the agencys own judgment is to the contrary, unless the agency can give an epistemically valid reason for rejecting the panel majoritys view.

Chevron as a Voting Rule

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.

Regulating Political Risks

This is a response to Bruce Ackerman’s Tanner Lectures, “The Decline and Fall of the American Republic,” delivered at Princeton University on April 7-9, 2010. I suggest a framework for clarifying and evaluating Ackerman’s claims: constitutions and other instruments of public law can be understood as devices for regulating political risks. Many of the standard tools of risk regulation analysis can be used, with appropriate modifications, to analyze political risks and to evaluate the institutions that attempt to manage those risks. Given this framework, I suggest that Ackerman’s central claims and concerns are inconsistent or ill-defined.

The Interaction of Democratic Mechanisms

The Good Society, a journal of political theory, will publish a symposium issue on Mechanisms of Democracy: Institutional Design Writ Small (2007). The issue contains commentaries by Robert Goodin and Mark Tushnet, and also this response.Mechanisms identifies tools of institutional design “writ small” that promote democratic values. Those tools include the veil of uncertainty, submajority voting rules, absolute majority voting rules, rules of delayed and selective transparency, and institutions for promoting legislative deliberation on constitutional questions. In this response, I go beyond the book to consider the complex interaction of democratic mechanisms, both on the demand side (what mechanisms are desirable?) and on the supply side (what mechanisms will political actors have the capacity and incentive to supply?). On the demand side, I consider cases in which mechanisms relate as complements, as substitutes, or in a fashion that is uncertain from the standpoint of the institutional designer. On the supply side, I consider the optimal scope of democratic reforms, the optimal majority for obtaining reform, and problems arising from the general theory of second best.

The Constitutional Law of Official Compensation

In a system of separated powers, who (which branch or institution) should decide how officials are compensated for their services? Actors who enjoy the authority to determine compensation across or within branches might leverage that authority to obtain control over powers that the constitutional scheme entrusts to others. Yet it is not easy to devise institutional arrangements that avoid the risk of aggrandizement through control over salaries, without incurring unacceptable costs on other dimensions. The most obvious alternativev - diminishing leverage, or protecting independence, by allowing institutions to set their own compensation - creates the competing risk that members of those institutions will use the compensation power to engage in self-dealing. Whether and how these structural tensions between aggrandizement and self-dealing can be successfully resolved, or at least negotiated through contextual adjustments and expedients, is the subject of this Essay. Professor Vermeule examines a range of constitutional texts and precedents, including the Article I Ascertainment Clause, the Compensation Clauses of Articles II and III, the Twenty-Seventh Amendment, and the Supreme Courts recent decision in United States v. Hatter. He describes these rules as responses to the constitutional-design tradeoff between promoting institutional independence and minimizing institutional conflicts of interest, evaluates their costs and benefits in that light, and proposes doctrinal adjustments intended to improve the constitutional law of official compensation.