Administrative Law

I appreciate helpful conversations with Daniel Carpenter, Michele Dauber, John Ferejohn, George Fisher, Rich Ford, Lawrence Friedman, David Golove, Jill Hasday, Daniel Ho, Don Hornstein, Lewis Kornhauser, David Luban, Eric Muller, Hari Osofsky, Robert Tsai, and Barry Weingast, as well as feedback from workshop participants at Berkeley, Iowa, Oregon, NYU, North Carolina, Southwestern, and Stanford’s Center for International Security and Cooperation. David Kennedy provided extremely helpful written comments on an earlier version of this Article. I also benefited greatly from the research assistance of Mindy Jeng, Shivan Saran, Britt Grant, Mrinal Menon, Connor Raso, Brad Hansen, and Jennifer Liu, as well as the staff of the Stanford Law School Library. I am also grateful to the staff at the National Archives in College Park, Maryland, the Franklin D. Roosevelt Presidential Library, and the Harry S. Truman Library. All of these people should be secure in the knowledge that they are not responsible for any errors or omissions. This is dedicated to Mateo, Ria, and Lucy.

Very useful comments were provided by Ken Bamberger, Eric Biber, Tino Cuéllar, Dan Farber, Jesse Shapiro, Matthew Stephenson, Adrian Vermeule, and John Yoo. Financial support has been provided by the Hellman Family Faculty Fund, the Boalt Hall Fund, UC Berkeley’s Committee on Research, and the Jerome Kutak Fund at The University of Chicago Law School. Thanks to Tess Hand-Bender, Roman Giverts, Monica Groat, Edna Lewis, Harry Moren, Stacey Nathan, and John Yow for research assistance. An earlier version of this Article was presented at the 2008 annual meeting of the American Law and Economics Association and in the UC Berkeley’s Center for the Study of Law and Society’s Speaker Series.

Thanks to Kevin Davis, Paul Kelly, Geoffrey Miller, Cass Sunstein, students in a Harvard Law School reading group on the Theory of the Administrative State, and audiences at the London School of Economics, NYU Law School and Tel Aviv Law School for helpful comments, and to Elisabeth Theodore for excellent research assistance.

For helpful comments, thanks are owed to Michael Asimow, Frederic Bloom, Ann Carlson, Joshua Civin, Sharon Dolovich, Jerry Kang, Sung Hui Kim, Allison Orr Larson, Toni Michaels, Hiroshi Motomura, Susan Rose-Ackerman, Steven Schooner, Seana Shiffrin, Kirk Stark, David Super, Eugene Volokh, Stephen Yeazell, and Noah Zatz. Tal Grietzer, Joshua Mandlebaum, Laura Podolsky, Ira Steinberg, Cathy Yu, and the staff of the UCLA Law Library provided invaluable assistance. I am grateful also to the participants at the 2009 Southern California Junior Faculty Workshop at Pepperdine Law School, the 2010 Berkeley-UCLA Junior Faculty Exchange, the Chapman University School of Law Colloquium, as well as to the editors of The University of Chicago Law Review. This Article is dedicated to Anneliese Beth, who was born during the drafting of this project.

For comments, I am grateful to Kristen Boon, Curt Bradley, Stephen Burbank, Cary Coglianese, Bill Ewald, Oona Hathaway, Sophia Lee, Zach Price, Beth Simmons, the editors of the University of Chicago Law Review, and participants at the 2016 Yale-Duke Foreign Relations Law Roundtable, the University of Pennsylvania Law School faculty retreat, and the Seton Hall University School of Law faculty workshop. For assistance with sources, I thank Gabriela Femenia of the Penn Law Library.

We are grateful to Ron Levin, John Manning, Arden Rowell, David Strauss, participants at a Harvard Law School faculty workshop, and participants at a University of Chicago symposium for valuable comments, and to Evelyn Blacklock and Maile Yeats-Rowe for superb research assistance. Parts of this Essay significantly expand and revise, while drawing on, a section of a near-contemporaneous, and much longer, article, Cass R. Sunstein and Adrian Vermeule, The New Coke: On the Plural Aims of Administrative Law, 2015 S Ct Rev 41. We are grateful for permission to draw on that section here.