Gary Lawson: The return of the king

GaryLawso Profesor Gary Lawson is the Philip S. Beck Professor of Law at Boston University School of Law. He is one of the country’s foremost scholars and critics of administrative law. He has written six editions of a textbook on administrative law and cowritten two books on aspects of constitutional history. When it comes to the serious issues that beset administrative law, Professor Lawson knows what he is talking about.

Professor Lawson has now posted his review of Philip Hamburger’s Is Administrative Law Unawful? at SSRN, where it is available for downloading. The review appears under the title “The return of the king: The unsavory origins of administrative law” and is forthcoming in the Texas Law Review. It is a brilliant review that is worth reading in its own right. Here is the abstract:

Philip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the forms of governmental action that constitutionalism – both in general and as specifically manifested in the United States Constitution – was designed to prevent. Accordingly, virtually every aspect of modern administrative law directly challenges the Constitution.

This extraordinary book will be immensely valuable to anyone interested in public law. My comments here concern two relatively minor points that call for more clarification. First, Professor Hamburger does not clearly identify what it means for administrative law to be “unlawful.” Does that mean “in violation of the written Constitution”? “In violation of unwritten constitutional norms?” In violation of natural law”? There is evidence that Professor Hamburger means something more than the former, but it is not clear what more is intended. In order to gauge the real status of administrative law, we must have a more direct conception of law than Professor Hamburger provides.

Second, much of Professor Hamburger’s historical and constitutional analysis focuses on the subdelegation of legislative authority. While his discussion contains numerous profound insights, including some that require correction in my own prior scholarship on the subject, it does not discuss how to distinguish interpretation by judicial and executive actors from lawmaking by those actors. Presumably, the prohibition on subdelegation of legislative authority prohibits only the latter. Figuring out where interpretation ends and lawmaking begins is one of the most difficult questions in all of jurisprudence, and I am not convinced that Professor Hamburger can successfully perform an end-run around it.

But these are modest nitpicks about a path-breaking work that should keep people of all different persuasions engaged and occupied for quite some time.

I highly recommend the review in its entirety to readers interested in the book or in the issues raised by Professor Hamburger’s important book.

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