In Terror in the Balance, Posner and Vermeule take on civil libertarians of both the left and the right, arguing that the government should be given wide latitude to adjust policy and liberties in the times of emergency. They emphasize the virtues of unilateral executive actions and argue for making extensive powers available to the executive as warranted. The judiciary should neither second-guess security policy nor interfere on constitutional grounds. In order to protect citizens, government can and should use any legal instrument that is warranted under ordinary cost-benefit analysis. The value gained from the increase in security will exceed the losses from the decrease in liberty. At a time when the 'struggle against violent extremism' dominates the United States' agenda, this important and controversial work will spark discussion in the classroom and intellectual press alike.

Terror in the Balance: Security, Liberty, and the Courts

Vermeule, Adrian

Posner, Eric A.

Foreign & International Law

Oxford University Press

What institutional arrangements should a well-functioning constitutional democracy have? Most of the relevant literatures in law, political science, political theory, and economics address this question by discussing institutional design writ large. In this book, Adrian Vermeule moves beyond these debates, changing the focus to institutional design writ small. In established constitutional polities, Vermeule argues that law can and should - and to some extent already does - provide mechanisms of democracy: a repertoire of small-scale institutional devices and innovations that can have surprisingly large effects, promoting democratic values of impartial, accountable and deliberative government. Examples include legal rules that promote impartiality by depriving officials of the information they need to act in self-interested ways; voting rules that create the right kind and amount of accountability for political officials and judges; and legislative rules that structure deliberation, in part by adjusting the conditions under which deliberation occurs transparently or instead secretly. Drawing upon a range of social science tools from economics, political science, and other disciplines, Vermeule carefully describes the mechanisms of democracy and indicates the conditions under which they can succeed.

Mechanisms of Democracy: Institutional Design Writ Small

Constitutional Law

Human reason is limited. Given the scarcity of reason, how should the power to make constitutional law be allocated among legislatures, courts and the executive, and how should legal institutions be designed? In Law and the Limits of Reason, Adrian Vermeule denies the widespread view, stemming from Burke and Hayek, that the limits of reason counsel in favor of judges making "living" constitutional law in the style of the common law. Instead, he proposes and defends a "codified constitution" - a regime in which legislatures have the primary authority to develop constitutional law over time, through statutes and constitutional amendments. Vermeule contends that precisely because of the limits of human reason, large modern legislatures, with their numerous and highly diverse memberships and their complex internal structures for processing information, are the most epistemically effective lawmaking institutions.

Law and the Limits of Reason

Legal Theory & Systems

The Executive Unbound: After the Madisonian Republic

Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done? The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers. But there is nothing in our system of checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority straight through to the Obama presidency. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

A constitutional order is a system of systems. It is an aggregate of interacting institutions, which are themselves aggregates of interacting individuals. In The System of the Constitution, Adrian Vermeule analyzes constitutionalism through the lens of systems theory, originally developed in biology, computer science, political science and other disciplines. Systems theory illuminates both the structural constitution and constitutional judging, and reveals that standard views and claims about constitutional theory commit fallacies of aggregation and are thus invalid. By contrast, Vermeule explains and illustrates an approach to constitutionalism that considers the systemic interactions of legal and political institutions and of the individuals who act within them.

The System of the Constitution

Human reason is limited. What are the consequences of this fact for the contested lawmaking claims between courts, legislatures and the executive branch? In light of the limits of reason, how should legal institutions be designed? In Law and the Limits of Reason, Adrian Vermeule criticizes the view that the limits of reason counsel in favor of judicial lawmaking in the style of the common law. He argues that there is no logical connection between the limits of reason, on the one hand, and the superiority of common law or of judge-made constitutional law on the other. The relatively small number of judges on relevant courts, their limited informational base and generalist rather than specialized skills, ensure that judicial reason is itself sharply limited and that the argument to judicial lawmaking from the limits of reason outruns the logical, causal, and evidentiary support. Instead, Adrian Vermeule proposes and defends a "codified constitution" - a regime in which legislatures have the primary authority to develop constitutional law over time, through statutes and constitutional amendments. Precisely because of the limits of human reason, large modern legislatures, with their numerous membership, complex internal structures for processing information and their abundant informational resources, are the most effective lawmaking institutions. Law and the Limits of Reason, now in paperback, serves as a thought-provoking companion to any constitutional law course of study.

Ever since Arthur M. Schlesinger Jr. used "imperial presidency" as a book title, the term has become central to the debate about the balance of power in the U.S. government. Since the presidency of George W. Bush, when advocates of executive power such as Dick Cheney gained ascendancy, the argument has blazed hotter than ever. Many argue the Constitution itself is in grave danger. What is to be done? The answer, according to legal scholars Eric Posner and Adrian Vermeule, is nothing. In The Executive Unbound, they provide a bracing challenge to conventional wisdom, arguing that a strong presidency is inevitable in the modern world. Most scholars, they note, object to today's level of executive power because it varies so dramatically from the vision of the framers. But there is nothing in our system of checks and balances that intrinsically generates order or promotes positive arrangements. In fact, the greater complexity of the modern world produces a concentration of power, particularly in the White House. The authors chart the rise of executive authority straight through to the Obama presidency. Political, cultural and social restraints, they argue, have been more effective in preventing dictatorship than any law. The executive-centered state tends to generate political checks that substitute for the legal checks of the Madisonian constitution.

How should judges, in America and elsewhere, interpret statutes and the Constitution? Previous work on these fundamental questions has typically started from abstract views about the nature of democracy or constitutionalism, or the nature of legal language, or the essence of the rule of law. From these conceptual premises, theorists typically deduce an ambitious role for judges, particularly in striking down statutes on constitutional grounds. In this book, Adrian Vermeule breaks new ground by rejecting both the conceptual approach and the judge-centered conclusions of older theorists. Vermeule shows that any approach to legal interpretation rests on institutional and empirical premises about the capacities of judges and the systemic effects of their rulings. Drawing upon a range of social science tools from political science, economics, decision theory, and other disciplines, he argues that legal interpretation is above all an exercise in decisionmaking under severe empirical uncertainty. In view of their limited information and competence, judges should adopt a restrictive, unambitious set of tools for interpreting statutory and constitutional provisions, deferring to administrative agencies where statutes are unclear and deferring to legislatures where constitutional language is unclear or states general aspirations.

Judging under Uncertainty: An Institutional Theory of Legal Interpretation

Politics & Social Sciences

Philosophy

Harvard University Press

Law and Leviathan: Redeeming the Administrative State

From two legal luminaries, a highly original framework for restoring confidence in a government bureaucracy increasingly derided as ?the deep state.? Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? Intolerable? American public law has long been riven by a persistent, serious conflict, a kind of low-grade cold war, over these questions. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed, as long as public officials are constrained by what they call the morality of administrative law. Law and Leviathan elaborates a number of principles that underlie this moral regime. Officials who respect that morality never fail to make rules in the first place. They ensure transparency, so that people are made aware of the rules with which they must comply. They never abuse retroactivity, so that people can rely on current rules, which are not under constant threat of change. They make rules that are understandable and avoid issuing rules that contradict each other. These principles may seem simple, but they have a great deal of power. Already, without explicit enunciation, they limit the activities of administrative agencies every day. But we can aspire for better. In more robust form, these principles could address many of the concerns that have critics of the administrative state mourning what they see as the demise of the rule of law. The bureaucratic Leviathan may be an inescapable reality of complex modern democracies, but Sunstein and Vermeule show how we can at last make peace between those who accept its necessity and those who yearn for its downfall.

Sunstein, Cass. R.

Administrative Law

Belknap Press: An Imprint of Harvard University Press

See the best price to sell, buy, or rent books by Vermeule, Adrian. BookScouter helps to compare book prices from 25+ online bookstores and 30+ buyback vendors with a single search.

Books by Vermeule, Adrian

See the best price to sell, buy, or rent books by Vermeule, Adrian. BookScouter helps to compare book prices from 25+ online bookstores and 30+ buyback vendors with a single search.

Terror in the Balance: Security, Liberty, and the Courts

Mechanisms of Democracy: Institutional Design Writ Small

Law and the Limits of Reason

The Executive Unbound: After the Madisonian Republic

The Executive Unbound: After the Madisonian Republic

The System of the Constitution

Law and the Limits of Reason

The Executive Unbound: After the Madisonian Republic

Judging under Uncertainty: An Institutional Theory of Legal Interpretation

Law and Leviathan: Redeeming the Administrative State