Book Review: Law & Leviathan: Redeeming the administrative state by C. Sunstein and A Vermeule

• DOI: 10.1177/02750740211072246
• Date: 01 April 2022
• Author: Jennifer L. Selin
• Published date: 01 April 2022
• Subject Matter: Book Reviews

Book Reviews

Sunstein, C., & Vermeule, A. (2020). Law & Leviathan: Redeeming the administrative state. Cambridge, MA: The Belknap Press of Harvard

University Press. 188 pp. $25.95. ISBN 9780674247536.

Reviewed by: Jennifer L. Selin , Levin Center at Wayne Law, Detroit, MI, USA.

DOI: 10.1177/02750740211072246

The reality of modern governance is that it is administrative.

The administrative state now reaches almost every aspect and

sector of the economy and helps governments deliver impor-

tant services to their citizens. Yet, as administrative agencies

and the policies delegated to them have grown in size and

importance, questions about their legitimacy also intensify.

Critiques of the administrative state emerge from diverse

ideological and philosophical perspectives. Some argue that

the bureaucracy violates the original structural vision of the

Framers of the U.S. Constitution. Others worry that adminis-

trative policy now regulates too many aspects of our daily

lives. Still, others wonder whether democratically elected

officials have the will or capacity to hold unelected adminis-

trators accountable for their actions. Volumes exist in support

of or in opposition to each of these critiques.

Fundamentally, all of this work engages with the same

underlying query: does administrative governance threaten

the rule of law? In Law and Leviathan, Sunstein and

Vermeule tackle this question. After addressing arguments

that the administrative state presents an opportunity for an

unconstitutional increase in executive power, a threat to

private liberty, and a concern for democratic accountability,

the authors trace developments in administrative law to

assuage fears about the legitimacy of the administrative state.

Sunstein and Vermeule argue a common set of procedural

principles unify administrative law and impose constraints on

administrative power. These principles echo through seem-

ingly disparate judicial opinions issued across time that

address a host of problems arising from the existence of the

administrative state. The authors’term these principles the

morality of administrative law. This morality safeguards

against governmental abuse of power and serves to inform,

limit, and improve the operation of the administrative state.

The morality of administrative law centers around the

applicability and stability of rules that govern administrative

discretion. These rules provide a relatively durable set of

standards of which all political officials, administrative

actors, and private litigants are aware. The principles encour-

age “agency behavior that is infused and structured by a con-

ception of the rule of law, one that channels and shapes

agency discretion in ways that make it both efficacious and

efficacious as law, rather than as arbitrary command”(p. 43).

To illustrate the morality of administrative law, Sunstein

and Vermeule provide a detailed analysis of seminal judicial

opinions on the subject. The authors argue that, regardless of

whether these opinions upheld or reversed administrative

action, jurisprudence establishes a contract containing proce-

dural preconditions for administrative action. The authors’

argument is appealing in its simplicity—critics need not be

worried about the administrative state because it operates

under a consistent set of rule of law principles.

However, this simple and powerful claim is not without its

own imperfections. Law and Leviathan leaves careful readers

speculating over the precise moral rules that govern modern

administration and how these rules translate to public man-

agement. Because the book is grounded in normative legal

debates, scholars are left with two unresolved puzzles

related to practical governance.

First, while Law and Leviathan forcefully argues that an

internal morality guides the administrative state, the book

fails to identify the precise rules under which agencies

operate. Sunstein and Vermeule construct their theoretical

argument around Lon Fuller’s (1969) procedural precondi-

tions for accomplishing the tasks of law. In doing so, the

authors elaborate upon Fuller’s eight ways that governments

can violate the internal morality of the rule of law. The

authors then proceed to argue that administrative law does

not exhibit these failures. Simply, according to the authors,

critics of the administrative state may breathe a sigh of

relief because seminal cases in administrative law do not

fall into the moral traps identified by Fuller.

While this may be the case, arguing administrative juris-

prudence fails to exhibit a particular negative characteristic

is not equivalent to articulating the inherent standards that

jurisprudence upholds. What fundamental legal principles

guide administrators as they go about their jobs on a daily

basis? To what moral rules do elected officials and private lit-

igants hold the administrative state accountable? Put another

way, scholars and practitioners are left to ponder the exact

influence administrative law has on day-to-day agency

governance.

To be clear, the internal morality of administrative law

may be an intrinsic part of administration and therefore so

ingrained in administrative practice that it is difficult to

Book Reviews

American Review of Public Administration

2022, Vol. 52(3) 248–250

© The Author(s) 2022

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