Reply: The Legislative Choice Between Agencies and Courts: A Response to Farber and Vermeule
Responding to Matthew C. Stephenson, Legislative Allocation of Delegated Power: Uncertainty, Risk, and the Choice Between Agencies and Courts , 119 Harv. L. Rev. 1035 (2006)
In their respective commentaries, Professors Daniel Farber and Adrian Vermeule offer some generous praise of my work, but mostly they are critical. Unsurprisingly, their critiques are clear, well-argued, and constructive. That said, I think both of them overstate the significance of the concerns they raise. I welcome the opportunity to continue the scholarly dialogue by offering a brief response.
My original Article addressed the delegation preferences of a rational legislator. Instead of asking when a legislator would prefer to delegate authority — an important question that has already received considerable attention — my Article asked, “To which institution would a rational legislator prefer to delegate — an administrative agency or the courts?” Understanding the preferences of a rational legislator has implications for both positive and normative analysis. On the positive side, if we think that legislators’ behavior at least approximates instrumentally rational behavior, a rational choice analysis may help explain and predict legislative behavior. On the normative side, at least some courts and commentators believe that, when resolving certain kinds of administrative law cases, judges should ask themselves what they think the legislature would have preferred had it considered the question explicitly.
Professor Farber claims that, although my model may be a modest improvement on prior work, it is fundamentally flawed because it generates two counterintuitive predictions, both of which are flatly inconsistent with the empirical evidence. Professor Farber’s first objection — regarding the relationship between consistency interests and the discount parameters — is well taken, although in my view it has less to do with a flaw in the analysis than with an important caution about the proper substantive interpretation of some of the results. Although I attempted to highlight this issue in the Article, Professor Farber is right to stress it further. Professor Farber’s second criticism, about my supposed inversion of the ally principle, is in my view simply mistaken. Let me briefly address each objection in turn.
119 Harv. L. Rev. F. 173 (2006) | DOWNLOAD PDF
