In Hayek Lecture, Judge Raymond Kethledge of the Sixth Circuit examines the rule of law

Judge Raymond Kethledge of the US Court of Appeals for the Sixth Circuit delivered the 15th annual Friedrich A. von Hayek Lecture on November 7. In the lecture, sponsored by the Classical Liberal Institute and the NYU Journal of Law & Liberty, Kethledge considered classical liberal philosopher Hayek’s views on the rule of law.

Select remarks by Judge Raymond Kethledge:

Raymond Kethledge speaking
Judge Raymond Kethledge

“A society that respects the individual as an individual—which is to say one that respects the individual’s protected sphere—thereby allows each person by his several knowledge and skills to help satisfy the needs of society through a contribution of his choice. What makes the protected sphere a reality is the rule of law. The law tells each person what facts he may count on and thereby extends the range within which he can predict the consequences of his actions, and by doing so the law allows each individual to make the fullest use of his knowledge.”

“To be consistent with the rule of law…the agency’s interpretation must be provisional—in the sense that it must always be subject to review by ‘independent judges who are not concerned with any temporary ends of government.’… The judge aims to preserve a legal order, whose rules are ‘known to the parties concerned,’ and the judge’s decision is one in which he has no stake. The judge’s interpretation of a law is therefore both impartial and relatively predictable. But an agency’s often is neither. An agency interprets the law in pursuit of some policy goal.” 

“As to my Chevron cases—in which a federal agency had argued that we should defer to its interpretation of a federal statute—I observed the following: ‘It seems to me that the agency is not trying to answer the same question that we are. The court tries to find the best objective interpretation of the statute, based on the statutory text. The agency instead asks if there is a colorable interpretation that will support the policy result that the agency wants to reach. When judges engage in that kind of analysis, we call it judicial activism. And most observers condemn judicial activism as an arrogation of legislative power to the judiciary. It is not clear to me why the result is any better when the arrogation is done by the executive.’”

Posted December 16, 2019