Friday, November 17, 2017
In a forthcoming article, Cass R. Sunstein and Adrian Vermeule take a look at what they call "The Morality of Administrative Law." They frame their article around eight ways Lon Fuller noted “that the attempt to create and maintain a system of legal rules may misfire.” These are:
(1) a failure to make rules in the first place, ensuring that all issues are decided on a case-by-case basis;
(2) a failure of transparency, in the sense that affected parties are not made aware of the rules with which they must comply;
(3) an abuse of retroactivity, in the sense that people cannot rely on current rules, and are under threat of change;
(4) a failure to make rules understandable;
(5) issuance of rules that contradict each other;
(6) rules that require people to do things that they lack the power to do;
(7) frequent changes in rules, so that people cannot orient their action in accordance with
(8) a mismatch between rules as announced and rules as administered.
It struck me that many of these concerns are also a useful framework for thinking about the way land use hearings often go awry.