Adrian Vermeule Research Articles

Cass Sunstein and Adrian Vermeule on conspiracy theories

I criticise Cass Sunstein and Adrian Vermeule’s influential critique of conspiracy theories in "Conspiracy Theories: Causes and Cures". I argue that their position depends on an equivocation over the meaning of the term ‘conspiracy theory’. This equivocation reflects a widespread assumption that conspiracy theories tend to be false, unjustified and harmful, and that, as a result, we can speak as if all conspiracy theories are objectionable in each of these three ways. I argue that this assumption is itself false, unjustified, and harmful. There are many true, justified, and/or beneficial conspiracy theories. This is because people often conspire, we often have good reason to believe that people are conspiring, and there is often a significant public benefit in exposing their conspiracies. I compare conspiracy theories to scientific theories, arguing that just as most of us regard bad scientific theories (i.e. false, unjustified and harmful ones) as an acceptable price to pay for good scientific theories, we should regard bad conspiracy theories as an acceptable price to pay for good conspiracy theories. I go on to argue that Sunstein and Vermeule’s proposed ‘cure’ for conspiracy theories is unlikely to work and is inconsistent with the values of liberal democracy.

DOIS PROBLEMAS DE OPERACIONALIZAÇÃO DO ARGUMENTO DE “CAPACIDADES INSTITUCIONAIS"

Em um trabalho anterior, discutimos três usos do argumento de “capacidades institucionais” que, embora apresentados sob o mesmo rótulo, são na verdade coisas muito distintas. São usos da expressão – e da típica referência ao artigo seminal de Cass Sunstein e Adrian Vermeule – em sentidos que identificamos como banais, redundantes ou absurdos. Embora possam gerar argumentos válidos sob critérios quaisquer, esses usos não podem ser reconduzidos ao que esses autores chamam de análises de “capacidades institucionais”. Neste breve ensaio teórico, partimos das considerações resumidas acima para tentar atingir um objetivo distinto e complementar: o que acontece quando se tenta de fato utilizar o argumento nos termos descritos por Sunstein & Vermeule? Vamos apontar e discutir dois desafios relativos à operacionalização efetiva do argumento das “capacidades institucionais”. O primeiro, que chamaremos de “o problema da informação”, está intrinsecamente conectado ao papel desempenhado por inputs empíricos no tipo de análises institucionais comparadas que o argumento das CIs exige. O segundo problema, que chamaremos de “o problema da observância”, aponta para um possível caráter excessivamente exigente de toda a estrutura do argumento, no momento em que se considera que ele precisa ser manipulado por tomadores reais de decisão.

Understanding Informal Constitutional Change

Amid much recent American work on the problem of informal constitutional change, this article stakes out a distinctive position. I argue that theories of constitutional change must address more directly the question of the relationship between the "small c" and "big C" Constitution and treat seriously the possibility of conflict between them. I stress the role the text of the Constitution and structural doctrines of federalism and separation of powers play in this relationship and thus in constitutional change, both formal and informal. I therefore counsel against theories that rely solely on a practice-based approach or analogies between "small c" constitutional developments and British or Commonwealth traditions of the "unwritten" constitution and constitutional "conventions". In particular, I critique theories developed by Karl Llewellyn, Ernest Young, Adrian Vermeule, and David Strauss. The alternative I advocate is to approach constitutional change from a historicist perspective that uses work from American political development scholarship to focus attention on how state building and the creation of new institutional capacities are linked to constitutional change. This approach will allow us to make progress by highlighting that there can be multiple constitutional orders in a given historical era, thus accounting for the conflictual nature of contemporary constitutional development.

The Constitution of Risk

Political Science QuarterlyVolume 129, Issue 3 p. 525-527 Book Review The Constitution of Risk by Adrian Vermeule New York, Cambridge University Press, 2013. 200 pp. $32.99. Aziz Z. Huq, Aziz Z. Huq University of Chicago Law SchoolSearch for more papers by this author Aziz Z. Huq, Aziz Z. Huq University of Chicago Law SchoolSearch for more papers by this author First published: 11 September 2014 https://doi.org/10.1002/polq.12230Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Volume129, Issue3Fall 2014Pages 525-527 RelatedInformation

Interpretive Choice in Statutory Interpretation

This article considers theories of “interpretive choice,” which deny that any particular method of interpreting a statute is uniquely reasonable and instead take statutory interpretation to be very largely underdetermined by reason. Cass Sunstein argues from the nature of interpretation that the choice of interpretive method should turn directly on consequences. Adrian Vermeule argues that whatever one takes to be the object of interpretation, it is the study of the capacities of interpreters rather than philosophical argument that should decide the choice of interpretive method. Scott Shapiro argues that the nature of law entails that interpretive discretion should track the distribution of trust, which is system-specific and varies from (type of) interpreter to interpreter. These arguments fail to perceive the nature of language use and interpretation in general, or lawmaking and statutory interpretation in particular. Any well-formed practice of statutory interpretation will center on inference about the intentions of the enacting legislature, which focus on legislative intent is nonetheless consistent with much variation in the context of enactment.

Properties in Constitutional Systems

Adrian Vermeule’s The System of the Constitution provides the first thoroughgoing application of insights from the burgeoning study of complex systems to core problems in constitutional theory. Complex systems are characterized by system effects — properties of the system that are not properties of any individual system component, as liquidity may be a property of a volume of water while no individual H2O molecule is itself liquid. System effects arise from the complex interactions of system components with each other and exogenous factors. Vermeule maintains that a constitutional order can be described as a complex “system of systems,” with individual agents aggregated into institutions, which are in turn aggregated into the larger system. I argue that this new account advances constitutional theory by suggesting needed analytic connections between individual-level accounts such as attitudinal models of judicial decision-making and institution-level claims about dynamics like the political safeguards of federalism; and by reshaping the research program by motivating new, more nuanced descriptive constitutional theory work that accounts for system effects and their implications. Finally, I explore the exciting possibility that a systems theory account of law may provide new approaches to some of the most basic questions in general jurisprudence — it suggests, among other things, that some legal norms themselves may arise as system effects.

AdrianVermeule, The System of the Constitution, New York: Oxford University Press, 2012, 220 pp, hb £22.50.

The Modern Law ReviewVolume 75, Issue 6 p. 1182-1188 BOOK REVIEW Adrian Vermeule, The System of the Constitution, New York: Oxford University Press, 2012, 220 pp, hb £22.50. Thomas E. Webb, Thomas E. WebbSearch for more papers by this author Thomas E. Webb, Thomas E. WebbSearch for more papers by this author First published: 01 November 2012 https://doi.org/10.1111/j.1468-2230.2012.00941_3.xRead the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Volume75, Issue6November 2012Pages 1182-1188 RelatedInformation

The Executive Unbound: After the Madisonian Republic by Eric A. Posner and Adrian Vermeule

The Executive Unbound: After the Madisonian Republic <i>by Eric A. Posner and Adrian Vermeule</i>

The Executive Unbound: After the Madisonian Republic - By Eric Posner and Adrian Vermeule

The Executive Unbound: After the Madisonian Republic - By Eric Posner and Adrian Vermeule

Can We Reason About Reason? On Adrian Vermeule's Law and the Limits of Reason

This is Rivka Weill's contribution to the symposium on Adrian Vermeule's book “Law and the Limits of Reason.”

The Limits of Epistemic Legalism: A Reply

Journal Article The Limits of Epistemic Legalism: A Reply Get access Adrian Vermeule Adrian Vermeule Search for other works by this author on: Oxford Academic Google Scholar Jerusalem Review of Legal Studies, Volume 2, Issue 1, December 2010, Pages 47–53, https://doi.org/10.1093/jrls/2.1.47 Published: 01 December 2010

The Vices of Epistemic Institutionalism

This is Alon Harel's contribution to the symposium on Adrian Vermeule’s book “Law and the Limits of Reason.”

A Limited Constitution: Publius, the State of Emergency, and “One Supreme Tribunal”

What is the nature of republican power in a state of emergency? This question has shadowed much of the legal and political discourse in the United States in the aftermath of the traumatic event of 9/11 and subsequent prosecution of the war on terror. Eric Posner and Adrian Vermeule's Terror in the Balance: Security, Liberty, and the Courts argues that far from it being the case that judicial oversight of government-imposed security measures should be heightened in states of emergency, on the contrary, it is precisely at such times that they should be given the broadest latitude—even when legally suspect. This essay asks the simple question of how Publius of The Federalist Papers would have regarded the argument of Terror in the Balance.

Chronotopologies of the Exception: Agamben and Derrida before the Camps

In this essay, Il discuss three different ways of thinking the relationship between a state of exception and the rule of law.I begin with Bruce Ackerman who in “The Emergency Constitution” tried to demarcate an unmistakable threshold between the normal functioning of a constitutional democracy and its exceptional suspension. After having separated these two realms, Ackerman concerns himself with determining the actor who should have the authority to switch from normality to exceptionality (and vice versa). From this perspective he argues for the necessity of a statutory reform that would unmistakably preserve the legislature authority over the exception threshold, and therefore prevent the executive from turning a transitional emergency regime into a permanent police state. However imperative or praiseworthy such an attempt may be, I argue that Ackerman’s legalist framework fails to notice that the exception is not something that — sometimes and somewhere, in a local and transitory context — needs to be enforced in order to deal with national emergencies. Following Adrian Vermeule, my first critical intervention consists in showing that any defense of classic legalism overlooks the inevitable existence, within a system of rights, of legal black and grey holes that always allow for negotiations with the rule of law. Against Vermeule, I claim that these loopholes are not created by the judicial discretion inscribed in administrative law, but provoked by the naked formality of laws, i.e., by the very form of law. Inspired by Jacques Derrida’s description of the textual structure of our relation to law and Agamben’s identifying the state of exception as the paradigm of government, I argue that spectacular exceptions granted to the executive when emergencies transpire should not distract us from the micro-exceptions that are produced every time the meaning of a certain law is decided upon. In other words, the executive’s reactions to national crises should not prevent us from acknowledging that, for certain segments of the population, freedom is normally, and strategically, negated. After highlighting the structural affinities between Derrida and Agamben’s topologies of the exception, I explain why, according to Agamben, deconstruction’s eternal and tactical negotiation with a law recognized to always be in force without any fixed meaning is insufficient. In order to improve our position in the struggle against an emergency that has always been the rule, the task before us is the creation of truly extra-juridical spaces that might function as real exceptions to sovereign power.

How Different is Writing Small from Writing Large?

Research Article| January 01 2009 How Different is Writing Small from Writing Large? Mark Tushnet Mark Tushnet Search for other works by this author on: This Site Google The Good Society (2009) 18 (1): 16–20. https://doi.org/10.2307/20711313 Cite Icon Cite Share Icon Share Facebook Twitter LinkedIn MailTo Permissions Search Site Citation Mark Tushnet; How Different is Writing Small from Writing Large?. The Good Society 1 January 2009; 18 (1): 16–20. doi: https://doi.org/10.2307/20711313 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All Scholarly Publishing CollectivePenn State University PressThe Good Society Search Advanced Search The text of this article is only available as a PDF. Copyright © 2009 The Pennsylvania State University2009The Pennsylvania State University Article PDF first page preview Close Modal Issue Section: Symposium: Adrian Vermeule's Mechanisms of Democracy You do not currently have access to this content.

Fiscal challenges: an interdisciplinary approach to budget policy

Preface Part I. The Law and Politics of Fiscal Policy: Introduction 1. The Congressional budget process William Dauster 2. Budget gimmicks Cheryl Block 3. Transparency in the US budget process Elizabeth Garrett and Adrian Vermeule 4. European experiences with fiscal rules and institutions Jurgen von Hagen Part II. Understanding Federal Deficits and Public Debt: Introduction 5. Perspectives on federal deficits and debt Michael Boskin 6. Counting the ways: the structure of federal spending Howell Jackson 7. Starving the beast: the psychology of budget deficits Jonathan Baron and Edward McCaffery Part III. Budgeting and Fiscal Constraints at the State Level: Introduction 8. Budgetary arrangements in the 50 states: in search of model practices Juliet Musso, Elizabeth Graddy and Jennifer Grizard 9. The calculus of constraint: a critical review of state fiscal institutions Tracy Gordon 10. When does the ballot box limit the budget? Politics and spending limits in California, Colorado, Utah, and Washington Thad Kousser, Matthew McCubbins and Kaj Rozga Part IV. Intergovernmental Aspects of Budget Policy: Introduction 11. Dysfunctional or optimal institutions? State debt limitations, the structure of state and local governments, and the finance of American infrastructure Barry Weingast and John Wallis 12. Federal-state budgetary interactions David Super Part V. Judicial Powers and Budget Policy: Introduction 13. New property, entrenchment, and the fiscal constitution John Harrison 14. Courts, constitutions, and public finance: some recent experiences from the States Richard Briffault.

The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs

This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated. author. Assistant Professor, Harvard Law School. I am grateful to Richard Fallon, Eugene Kontorovich, Daryl Levinson, John Manning, Jonathan Masur, John McGinnis, Martha Minow, Bob Powell, Mark Tushnet, Adrian Vermeule, and participants in the 2007 Harvard-Berkeley Conference on Constitutions & Consequences for helpful comments on earlier drafts. STEPHENSON OP 10/14/2008 11:21:15 AM the price of public action

Terror in the Balance: Security, Liberty, and the Courts by Eric A. Posner and Adrian Vermeule

Terror in the Balance: Security, Liberty, and the Courts <i>by Eric A. Posner and Adrian Vermeule</i>

THE INSTITUTIONAL THEORY OF LEGAL INTERPRETATION

In his provocative and masterly book Judging Under Uncertainty Adrian Vermeule seeks to displace the dominance of what he calls first-best conceptualism in legal theory and instead argues that interpretive law needs to take an institutional turn. Vermeule's focus on the empirical problems of institutional interpretation is a welcome and long overdue contribution to legal theory. Judging Under Uncertainty is an ambitious book and a valuable contribution to legal theory. The book deals exclusively with American law and Vermeule's institutional approach to legal interpretation takes the existing status quo of the American system as a given. This, one might be tempted to complain, limits the scope and application of the institutional theory advanced by Vermeule. I shall raise some of these concerns towards the end of this review article when I consider some of the insights Canadian jurisprudence could contribute to the development on an institutional theory of legal interpretation (as well as the insights Canadian legal theorists can take from Vermeule's compelling and important arguments).

Adrian Vermeule. Mechanisms of Democracy: Institutional Design Writ Small

In their analysis of the transition from communism to capitalism, Elster et al. (1998)employthe analogy of a ship at sea. Because the ship is already afloat, the crew cannot engage ina wholesale restructuring of the entire vessel. Instead, the crew must make smaller changesand improvements given the existing constraints of being afloat at sea. This analogy capturesthe motivation behind Adrian Vermeule’s