Administrative law is in considerable ferment as the Supreme Court has become increasingly receptive to attacks on its core doctrines. In a new book, two towering figures in the world of administrative law, Professors Cass Sunstein and Adrian Vermeule, mount a defense of those doctrines premised on Lon Fuller\u2019s jurisprudential theory of the morality of law. In Law & Leviathan, they argue that although much of administrative law is not aligned with the text of the Constitution or the Administrative Procedure Act, it largely comports with an equally legitimate (or, perhaps, higher) authority\u2014 morality. Another preeminent administrative law scholar, Professor Richard Epstein, tests that defense in a new book of his own. He argues that Fuller\u2019s framework is an inadequate standard because it does not recognize that procedural defects undermine a law\u2019s legitimacy and assumes, erroneously, that law\u2019s morality may be judged independent of any assessment of the substance of the law.<\/p>\n
This Book Review examines both books and concludes that Epstein\u2019s The Dubious Morality of Modern Administrative Law has the better argument. Not only is Fuller\u2019s framework incomplete, but Sunstein and Vermeule ignore ways that modern administrative law violates that framework. They do not, for example, account for biased decision-making when agencies exercise judicial power, which violates Fuller\u2019s rule that there must be no discrepancy between a law\u2019s text and its application. Epstein\u2019s criticisms, however, are incomplete. He misses another significant problem with Fuller\u2019s framework: It is of dubious applicability to a constitutional republic. Fuller\u2019s framework rests on the assumption that law is created by an absolute monarch. As such, Fuller\u2019s rules are the only constraints on the king\u2019s lawmaking ability. The various branches of a constitutional republic, however, face additional constraints that are both procedural and substantive. All three debaters accept the application of Fuller\u2019s framework to American administrative law without asking whether it can be imported wholesale into a constitutional republic that separates and lim-its power. The modern administrative leviathan has broken those constraints. With the assistance of the Supreme Court, the administrative state has usurped legislative and judicial powers that the Framers assigned elsewhere. Sunstein and Vermeule try to convince their readers that, despite all that, the beast is not dangerous. They have failed.<\/p>\n