Rowman & Littlefield Publishers / Manhattan Institute
Pages: 236
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Trim: 6½ x 9⅜
978-1-5381-4149-6 • Hardback • March 2020 • $41.00 • (£35.00)
978-1-5381-4150-2 • eBook • March 2020 • $39.00 • (£30.00)
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.
About the Manhattan Institute
About the Author
Introduction: An Accidental Book
PART I: THE DEBATE OVER THE MODERN ADMINISTRATIVE STATE
A Frame of Reference for All Administrative Law
Rule-of-Law Basics
Fuller on the Rule of Law
Fuller’s Notable Omissions
The Empirical Link Between Substance and Procedure
Property
Freedom of Contract
Eminent Domain
PART II: THE TRADITIONAL APPROACH TO ADMINISTRATIVE LAW
The Founding Period
The 19th and Early 20th Centuries
The 1935 Turning Point
The Framework Applied In Modern Times
Bias and the Right to Be Heard
Guidances
Nondelegation
The Delegation of Benefit Distributions
PART III: THE CHEVRON SYNTHESIS
Section 706(a) of the Administrative Procedure Act
The Chevron Two Step
Navigable Waters
Weyerhaeuser v. U.S. Fish & Wildlife Service
The Major Question Diversion
MCI Telecommunications Corp. v. AT&T
FDA v. Brown & Williamson
Whitman v. American Trucking Association
Massachusetts v. EPA
King v. Burwell
PART IV: CHEVRON LITE
Skidmore
Seminole Rock and Auer
Gloucester County
Kisor
Retroactivity and the Reversal of Longstanding Positions
Fundamental Choices
Chenery I and Chenery II
Chamber of Commerce v. United States Department of Labor
PART V: QUESTIONS OF FACT UNDER THE ADMINISTRATIVE PROCEDURE ACT
Arbitrary, Capricious, or an Abuse of Discretion
Traditional Agency Action
The Pipeline Cases
Conclusion
Tables of Cases
General Index
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.— National Review
Richard Epstein is one of the most prolific, and eloquent, scholars of the “Chicago School” approach to law and economics. . . . An argument over whether one or another scholar is correct about an interpretation of a legal treatise from 1964 is not very exciting. But that is just the origin story. As one might expect from a scholar of Epstein’s stature and ferocity, the book that resulted is a much more general, more interesting, and frankly more important set of insights.
— The Independent Review: A Journal of Political Economy
A comprehensive criticism of modern administrative law, from its first principles to its finest details—in other words, quintessential Richard Epstein.— Adam White, Resident Scholar at the American Enterprise Institute and Director of George Mason University’s C. Boyden Gray Center for the Study of the Administrative State
Richard Epstein is one of the very few scholars who can speak with authority about a subject as broad as the morality of administrative law. In this superb, clearly written and informative book, he contrasts traditional and modern administrative law and makes a powerful case that the modern administrative state fails the most important test of a legal system: consistently advancing the Rule of Law. — Peter J. Wallison, Senior Fellow at the American Enterprise Institute and author of Judicial Fortitude: The Last Chance to Rein in the Administrative State
Thousands of new regulations are churned out by the administrative state each year. Courts enable federal agencies to expand their powers beyond those authorized by our elected representatives -- even as these same courts limit executive efforts to rein in the bureaucracy. Richard Epstein’s new book illuminates the problem and lights a path for the Supreme Court to return administrative law to its statutory, historical, and moral foundations.— James R. Copland, Director of Legal Policy, The Manhattan Institute