Overcoming Dicey in administrative law

Matthew Lewans's and Adrian Vermeule's books demonstrate the triumph of a Thayerian approach to administrative law, which sees legal interpretation as a shared enterprise, over a Diceyian one, which views it as the exclusive province of courts. Their historical, comparative, and analytic treatments expose the depth of the institutional settlement in the United States and Canada in which courts have come to accept that the functional reasons for legislative delegation to administrative agencies–some combination of the agencies' greater expertise, specialization, capacity, flexibility, and accountability–also justify judicial deference. These demonstrations reveal how much of our accumulated legal developments resurgent Diceyian critics of the administrative state and administrative law seek to cast aside. While largely fellow travellers, these books hold different lessons about the scope and grounds of law. For Vermeule, the diminished place of courts amounts to a larger abnegation of law. But the retreat of courts entails a retreat of law only if one holds on to an identification of law with the courts. In contrast, for Lewans, legitimate judicial deference to agencies is conditioned on agencies complying with the rule-of-law values of fair process and public reason giving. As a result, for Lewans, judicial deference does not mark a diminution of law but, rather, an occasion for judicial enforcement of legal values that apply independently of administrative agencies. These books thus leave us to ask: does law diminish as courts recede or does it still inhere, perhaps even more urgently, in administrative bodies?