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Tulsa Law Review Volume 53 Issue 2 Article 17 Winter 2018 Also, No Ethan J. Leib Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Ethan J. Leib, Also, No, 53 Tulsa L. Rev. 267 (2018). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol53/iss2/17 This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact . Leib: Also, No LEIB, BOOK REVIEW_FINAL (267) (CORRECTED) (DO NOT DELETE) 3/5/2018 8:50 AM ALSO, NO Ethan J. Leib* ADRIAN VERMEULE, LAW’S ABNEGATION: FROM LAW’S EMPIRE TO THE ADMINISTRATIVE STATE (HARVARD UNIVERSITY PRESS 2016). PP. 272. HARDCOVER $39.95. [T]he dwarf murmured contemptuously[:] time itself is a circle. “You spirit of gravity,” [Zarathustra] said angrily, “do not make things too easy for yourself!” –Friedrich Nietzsche, Thus Spoke Zarathustra1 In Zarathustra’s first recounting of the so-called doctrine of eternal recurrence, it is his dwarf companion who first gives expression to the idea that everything will forever repeat, leading always to the same life. The dwarf, however, fails to appreciate just what an “abysmal thought” this doctrine is2 – and seems not to understand the psychological and normative commitments adherence to the doctrine would require. When the animals with which Zarathustra surrounds himself later in the book joyfully recount the eternal recurrence to him – “eternally the same house . . . is built” – Zarathustra is disgusted by their complacency: “O you buffoons and barrel organs! . . . [H]ave you already made a hurdy-gurdy song of this?”3 Although Zarathustra eventually embraces the doctrine by the end of Thus Spoke Zarathustra, he learns that accepting the eternal return cannot be accomplished without great suffering, effort, and anxiety.4 Zarathustra, in fact, knows that teaching the doctrine is his “greatest danger and sickness.”5 To be sure, many * John D. Calamari Distinguished Professor of Law, Fordham Law School. Thanks to Nestor Davidson, David Dyzenhaus, Abner Greene, Philip Hamburger, Andrew Kent, Gary Lawson, Henry Monaghan, Jeffrey Pojanowski, and David Ponet for help on this Review. For inspiration on the title, see Adrian Vermeule, No, 93 TEX. L. REV. 1547 (2015). 1. FRIEDRICH NIETZSCHE, THUS SPOKE ZARATHUSTRA, reprinted in THE PORTABLE NIETZSCHE 270 (Walter Kaufmann ed. & trans., 1982) [hereinafter NIETZSCHE]. I will not muck with Kaufmann’s canonical translation notwithstanding its potential offensiveness to modern ears; for what it is worth, the Thomas Common translation also renders Zarathustra’s companion here as a “dwarf.” See FRIEDRICH NIETZSCHE, THUS SPOKE ZARATHUSTRA: A BOOK FOR ALL AND NO ONE (Thomas Common trans., 1892). 2. NIETZSCHE, supra note 1, at 328. 3. Id. at 329–30. 4. Id. at 340–43. 5. Id. at 332. For more on Zarathustra’s darker rendition of the doctrine of eternal recurrence distinguishing 267 Published by TU Law Digital Commons, 2017 1 Tulsa Law Review, Vol. 53 [2017], Iss. 2, Art. 17 LEIB, BOOK REVIEW_FINAL (267) (CORRECTED) (DO NOT DELETE) 3/5/2018 8:50 AM 268 [Vol. 53:267] TULSA LAW REVIEW commentators doubt whether Zarathustra’s embrace of the doctrine is meant to be taken at face value as a cosmological theory. Rather, it seems not to be a serious descriptive account of the way the world is, but a way to come to terms with our fate and live authentically.6 Adrian Vermeule embraces a doctrine of eternal recurrence of deference to the administrative state in Law’s Abnegation.7 But one can reasonably worry that Vermeule’s version is too similar to the simplistic and complacent version expounded by Zarathustra’s dwarf and his animals. This Review suggests that administrative law is not just a set of doctrines and practices that lead inexorably to deference to the administrative state but that it is also a set of anxieties and ambivalences about bureaucratic control in liberal democracies. Those anxieties and ambivalences are the law that eternally recurs along with deference; and that law more authentically fits and justifies our administrative law. * * * Vermeule’s Law’s Abnegation is a very good read, and it is easy to tell what he is aiming to argue on almost every page. Even though it is a synthetic work, weaving together ten different journal articles,8 three of which were co-authored – with different co-authors, to boot – the book has an integrity, a singular voice, and an admirably focused line of argument. Taking its point of departure from Ronald Dworkin’s failure to come to terms with the reality that most public law is made by the administrative state, 9 Vermeule offers an internal legal perspective on how judges and lawyers, rather than being a fount of principle in administrative law, have marginalized themselves through doctrines and practices of deference. It is, Vermeule argues, very hard to square “courts [as] the capitals of law’s empire, and judges [as] its princes,”10 in Dworkin’s famous formulation, with courts’ and judges’ seeming abnegation in their deferential judgments about the administrative state. This is a striking and important intervention. Legal theory surely needs to catch up with what are not terribly new developments in our constitutional and public law system. At least since the New Deal – and probably before, too – the structure of our separation of powers and the judiciary’s more marginal role in legal norm development has been apparent; the philosophy of law has not made the administrative state the “inescapable subject” it should be.11 Although Vermeule has some fun at Dworkin’s expense – offering his internal theory of administrative law as a Dworkinian “fit and justification” story – this it from the version embraced by the dwarf and the animals, see 2 MARTIN HEIDEGGER, NIETZSCHE: THE ETERNAL RECURRENCE OF THE SAME (1984). 6. See generally LAWRENCE J. HATAB, NIETZSCHE’S LIFE SENTENCE: COMING TO TERMS WITH ETERNAL RECURRENCE (2004); ALEXANDER NEHAMAS, NIETZSCHE: LIFE AS LITERATURE (1985). 7. ADRIAN VERMEULE, LAW’S ABNEGATION: FROM LAW’S EMPIRE TO THE ADMINISTRATIVE STATE (2016). 8. For a list of the source articles, see id. at 248. 9. Id. at 3. The failure of legal theory and philosophy of law more generally to take the administrative state seriously is also a central theme in Nestor M. Davidson & Ethan J. Leib, Regleprudence – at OIRA and Beyond, 103 GEO. L.J. 259 (2015). 10. RONALD DWORKIN, LAW’S EMPIRE 407 (1986). 11. VERMEULE, supra note 7, at 3. https://digitalcommons.law.utulsa.edu/tlr/vol53/iss2/17 2 Leib: Also, No LEIB, BOOK REVIEW_FINAL (267) (CORRECTED) (DO NOT DELETE) 2018 ALSO, NO 3/5/2018 8:50 AM 269 oversight is not Dworkin’s alone. As I have highlighted elsewhere, none of the contemporary major compendia of jurisprudence offer any sustained thinking abou (...truncated)