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Vermeule, Cornelius

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Vermeule

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Vermeule, Cornelius

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Author's Publications: search.filters.isAuthorOfPublication.313147f7-4ed5-4759-9e53-73de00c9feff

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Now showing 1 - 10 of 64
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    Conventions of Agency Independence
    (Columbia Law Review Association, Inc., 2013) Vermeule, Cornelius
    It is often said that the legal touchstone of agency independence is whether agency heads are removable at will or only for cause. Yet this condition is neither necessary nor sufficient for operational independence. Many important agencies whose heads lack for-cause tenure protection are conventionally treated as independent, while other agencies whose heads enjoy for-cause tenure protection are by all accounts thoroughly dependent upon organized interest groups, the White House, or legislators and legislative committees. This Article argues that the crucial role is played by what Commonwealth lawyers call “conventions.” Agencies that lack forcause tenure yet enjoy operative independence are protected by unwritten conventions that constrain political actors from attempting to remove their members or to direct their exercise of discretion. Such conventions reflect norms within relevant legal and political communities that impose sanctions for violations of agency independence or create beliefs or internalized moral strictures protecting independence. Conversely, where agencies enjoy statutory independence yet lack operative independence, the interaction among relevant political actors has failed to generate protective conventions. The lens of convention helps resolve several puzzles about the behavior of Presidents, legislators, judges, and others with respect to agency independence—including the Supreme Court’s puzzling treatment of SEC independence in Free Enterprise Fund v. PCAOB. By acknowledging the conventional character of agency independence, U.S. courts can incorporate ideas from the courts of Commonwealth legal systems that harmonize conventions with written rules of law. This Article’s principal suggestion is that U.S. courts should adopt the leading Commonwealth approach, according to which judges may indirectly “recognize” conventions and incorporate them into their interpretation of written law, but not directly enforce conventions as freestanding obligations.
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    Should Coercive Interrogation Be Legal?
    (Michigan Law Review, 2006) Posner, Eric A.; Vermeule, Cornelius
    Coercive interrogation is now a live subject, thanks to 9/11. At one time, coercive interrogation played a role only in philosophical disputes about consequentialism, in which scholars asserted or denied that the police could interrogate an individual in order to extract the location of a ticking nuclear bomb. None of the participants in those debates seriously considered the possibility that coercive interrogation could be justified except in extreme circumstances never likely to be met. Today, U.S. officials appear to engage in coercive interrogation or something very similar to it; so do other western governments; and the possibility that coercive interrogation may be justified in nonremote circumstances has entered mainstream debate. The task for legal scholars at this point is to understand how this practice fits into legal norms and traditions, and how it ought to be regulated.
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    Common-Law Constitutionalism and the Limits of Reason
    (Columbia Law Review Association, Inc., 2007) Vermeule, Cornelius
    In recent years, the central claim of common-law constitutionalism has been that precedent and tradition embody some form of latent wisdom. Judges will generally do best by deferring to the wisdom embodied in precedent and tradition, rather than trusting to their unaided reason. In what follows, I offer a critical analysis of this family of claims. Drawing throughout on Jeremy Bentham's critique of the subconstitutional common law, I conclude that the constitutional common law is not plausibly seen as a repository of latent wisdom, at least not to any greater extent than statutes and other nonjudicial sources of law. The mechanisms advanced by common-law constitutionalists suffer from infirmities of internal logic and from a failure to make the necessary institutional comparisons between and among precedent and tradition, on the one hand, and the outputs of legislatures, executive officials, and constitutional framers on the other.
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    Should We Have Lay Justices?
    (Stanford Law School, 2007) Vermeule, Cornelius
    By "lay justices" I mean justices of the Supreme Court of the United States who are not accredited lawyers. Currently the number of lay justices is zero, although there is no constitutional or statutory rule that requires this. Commentators who urge that the Supreme Court should be diverse on all sorts of margins - methodological diversity, ideological diversity, and racial or ethnic or gender diversity - say little or nothing about professional diversity on the Court. I argue that the optimal number of lay justices is greater than zero. In the strong form of the argument, an historian, economist, doctor, accountant, soldier or some other nonlawyer professional should be appointed to the Court. In a weaker form of the argument, we should at least appoint dual-competent justices - lawyers who also have a degree or some other real expertise in another body of knowledge or skill.
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    Chevron as a Voting Rule
    (Yale Law School, 2007) Gersen, Jacob; Vermeule, Cornelius
    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.
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    Emergencies and Democratic Failure
    (Virginia Law Review Association, 2006) Posner, Eric A.; Vermeule, Cornelius
    Critics of emergency measures such as the U.S. government’s response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Productsframework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.
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    The Delegation Lottery
    (Harvard University, Harvard Law School, 2006) Vermeule, Cornelius
    Replying to Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk and the Choice Between Agencies and Courts, 119 Harv. L. Rev. 1035 (2006). Matthew Stephenson models "the decision calculus faced by a rational, risk-averse legislator who must choose between delegation to an agency and delegation to a court." On the assumption that delegation to agencies tends to produce interpretive consistency across issues while delegation to courts tends to produce interpretive consistency over time, a risk-averse legislator interested in reducing variance along either dimension will face a tradeoff between intertemporal risk diversification and interissue risk diversification. From this basic tradeoff, Stephenson derives comparative statics about the rational, risk-averse legislator's choice of delegates under various conditions. I suggest that Stephenson's legislative-delegation model rests on excessively artificial assumptions and is unable to yield significant predictions - in either the political or statistical sense. In particular, it is unsatisfying to model legislators as entering a "policy lottery" by enacting ambiguous delegating statutes, but then also to picture them as clearly specifying the identity of the delegate. The same institutional and political factors that tend to produce a first-order policy lottery over statutory substance also tend to produce a second-order "delegation lottery" over the question whether agencies or courts have ultimate interpretive authority. Moreover, the factors the model includes are, at best, second-decimal considerations relative to the factors it excludes.
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    Selection Effects in Constitutional Law
    (Virginia Law Review Association, 2005) Vermeule, Cornelius
    The standard consequentialist analysis of constitutional law focuses on the incentives that shape the behavior of government officials and other constitutional actors. Incentive-based accounts justify elections as a means of constraining officials to promote the public welfare, or at least the welfare of the median voter; justify the separation of powers as a means of making "ambition counteract ambition"; justify negative liberties, such as free speech and free association, as a necessary corrective to incumbent officials' incentives to suppress political opposition; and so forth. In this experimental Essay, I offer a preliminary sketch of a different way of looking at constitutional law generally and constitutional structure in particular: through the lens of "selection effects." Constitutional rules, on this account, should focus not only on the creation of optimal incentives for those who happen to occupy official posts at any given time, but also on the question which (potential) officials are selected to occupy those posts over time. Where an incentive analysis is short-term and static, asking only how legal rules affect the behavior of a given set of officeholders, selection analysis is long-term and dynamic, asking how legal rules themselves produce feedback effects that, over time, bring new types of government officials into power. This turn to selection-based analysis yields fresh insight into the dynamics of constitutionalism. Because constitutional rules affect the pool of potential and actual officeholders, as well as the behavior of current officeholders, focusing on selection effects shows that some constitutional rules prove "self-stabilizing": the rules tend to select a corps of officeholders who will act to uphold and stabilize the rules themselves. Other constitutional rules, by contrast, prove "self-negating": the rules tend to select a corps of officeholders who work to undermine or destabilize the rules themselves. This framework supplies insights into diverse areas of constitutional law and theory, ranging from governmental structure, campaign finance, and voting rights to criminal sentencing, free speech, and affirmative action.
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    Three Strategies of Interpretation
    (University of San Diego, 2005) Vermeule, Cornelius
    We may distinguish three styles or strategies of decisionmaking. Under a maximizing approach, the decisionmaker chooses the action whose consequences are best for the case at hand (defining "best" according to some value the decisionmaker holds). Where decisionmakers choose the action that is best relative to constraints, accounting for the direct costs and opportunity costs of decisionmaking, we may call the approach optimizing rather than maximizing. Whereas the maximizer focuses only on the case at hand, the optimizer acts so as to maximize value over an array of cases. In contrast to both approaches, satisficing permits any decision whose results in the case at hand are good enough - although satisficing, like optimizing, may itself represent an indirect strategy of maximization. In this brief essay, I apply these distinctions to legal interpretation. Many approaches to the interpretation of statutes and the Constitution are maximizing approaches that attempt to produce as much as possible of some value the interpreter holds - for example, fidelity to legislative intent or original understandings. Optimizing approaches to interpretation condemn maximizing interpretation as a simpleminded approach that neglects the costs of decisionmaking and the costs of interpretive error. An alternative to both maximizing and optimizing approaches is a satisficing style of interpretation, in which interpreters eschew the search for the very best interpretation (even within constraints), instead selecting an interpretation that is good enough, in light of whatever value theory the interpreter holds. I criticize the maximizing style of interpretation and praise its two competitors. Both the optimizing and satisficing perspectives help to justify some controversial principles of statutory and constitutional interpretation, such as the rule barring resort to legislative history where statutes have a plain meaning, and clause-bound (as opposed to broadly holistic or "intratextualist") interpretation of statutes and the Constitution. Although maximizing interpretation is untenable, neither the optimizing approach nor the satisficing approach is globally best; each is an attractive decision-procedure in some contexts. Where the interpretive stakes are either very low or very high, satisficing is reasonable (whether or not rational in some stronger sense), while optimizing is best suited to medium-stakes decisions.
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    Libertarian Panics
    (Rutgers School of Law, 2005) Vermeule, Cornelius
    In a standard analysis, the history of civil liberties is characterized by a series of security panics. A range of mechanisms - cognitive heuristics and biases, various forms of cascading and herding, conformity and preference falsification, and so on - cause periodic panics in which aroused publics demand repressive measures to curtail the civil liberties of perceived enemies of the nation, particularly noncitizens or other outsiders. Government officials may themselves panic, or will at least supply the panicky measures that constituents demand. The standard remedy is to urge changes to legal doctrine or institutions, in order to curtail government's power to repress civil liberties in response to security panics. The standard model of security panics has been criticized on several grounds. Sometimes security panics are justified, even if produced by disreputable mechanisms; fear can motivate beneficial action as well as detrimental action. In any event, legal doctrines, and perhaps even institutional design, will prove incapable of constraining a genuinely panicked public. In what follows I will sketch a different criticism of the standard model. Even if that model is right as far as it goes, it is fatally incomplete. My central claim is that the mechanisms underlying security panics have no necessary or inherent pro-security valence. The very same mechanisms are equally capable of producing libertarian panics: episodes in which aroused publics become irrationally convinced that justified security measures represent unjustified attempts to curtail civil liberties. I will suggest that libertarian panics have been a regular occurrence in American history, and that we may be living through one now, in the form of a widespread and thoroughly irrational, even hysterical, reaction to small legal changes adopted after 9/11. Indeed, the tendency to diagnose the existence of a security panic can itself be symptomatic of a libertarian panic. The existence of libertarian panics undermines the institutional reforms urged by the advocates of the standard model. The very reforms that would minimize the risks and harms of security panics will maximize the risks and harms of libertarian panics. The institutional-design problem, then, is to optimize in light of these offsetting risks; whatever legal and institutional arrangements turn out to be optimal, they will necessarily prove less protective of civil liberties than the arrangements favored by advocates of the standard model.