Adrian Vermeule has a new paper, Rationally Arbitrary Decisions (in Administrative Law). Here is the abstract: How should administrative law cope with genuine uncertainty, in which probabilities cannot be attached to outcomes? I argue that there is an important category of agency decisions under uncertainty is which it is rational to be arbitrary. Rational arbitrariness […] Read more

In my essay on deference and the copyright cases, I suggested that an innovation the Supreme Court of Canada made in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 would bedevil lower courts. Briefly, the exception suggests that where there is co-ordinate jurisdiction between courts and administrative decision-makers […] Read more