Professor Rubin's article is an admirable piece of work on many levels, from its attention to jurisprudence to its concern with the practical changes in the Congress and its function, and their implications. In commenting on it, I mean to restrict myself to the latter subjects. These are the matters that have the closest tangency to my own work and produce for me the strongest response. Professor Rubin has given us a compelling statement of the problems posed for contemporary constitutional and legislative theory by one transformation in statutory practice accompanying the rise of the administrative state, the change from direct ("transitive") legislative resolution of policy problems to indirect ("intransitive") resolution through the empowerment of agents who are to determine policy problems under instruction. These changes, he argues, undercut such conventional doctrinal norms as "delegation" and "void-for-vagueness" as means for assessing legislative action.
One encounters the changes Professor Rubin describes on every hand. They are almost certainly irreversible, given the increasingly complex and interdependent ways in which we understand our existence. As a description of changes and as an assessment of the corresponding inadequacies of our existing models and theories about legislation, his essay is compelling. What a commentary might hope to do is to suggest a series of next steps in the analysis, further questions that might be asked as we seek to develop the new body of legislative theory for which he calls.
Peter L. Strauss,
Legislative Theory and the Rule of Law: Some Comments on Rubin,
Colum. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/210