Gersen and Vermeule on ‘Delegating to Enemies’ in Columbia Law Review

In their recently published paper, “Delegating to Enemies” (Columbia Law Review, forthcoming), Harvard Law School professors Jacob E. Gersen and Adrian Vermeule ’93 examine the longstanding practice of leaders who choose to delegate to ideological “enemies” whose viewpoints differ greatly from their own.

The concept is further explained in the paper’s abstract:

An axiom of institutional design is known as the ally principle: all else equal, voters, legislators or other principals will rationally delegate more authority to agents who share their preferences (“allies”). The ally principle is a conventional starting point for large literatures on principal-agent relationships in economics, political science, and law. In public law, theories of delegation – from legislatures to internal committees, from legislatures to agencies and the executive, or from higher courts to lower courts – universally assume the ally principle.

Yet history and institutional practice reveal many cases in which the ally principle not only fails to hold, but actually gets things backwards. We identify an enemy principle: in certain cases principals rationally delegate, not to allies, but to enemies or potential enemies — agents who do not share the principal’s preferences or whose preferences are uncertain at the time of the delegation. Our aim is to describe these cases of delegating to enemies, to explain the mechanisms on which they rest, and to offer an account of the conditions under which principals do best by following the enemy principle and reversing the ally principle. Such an account is a necessary first step towards a fully general and comprehensive theory of delegation, one that includes both the ally principle and the enemy principle as special cases.

The paper was recently discussed in The Wall Street Journal, an excerpt of which is available below:

Consider the following scenario, probably unlikely but entirely plausible: The Supreme Court strikes down a large chunk of the Affordable Care Act, and the first draft of the opinion is written by a hotshot law clerk for a conservative justice—a clerk who is actually a liberal. This clerk does not actually believe the arguments she is making, but nevertheless fashions the cleverest attacks she can against the law. Conversely, if the court’s supposed liberal wing upholds the law, it is possible that conservative law clerks will have contributed to the effort.

Some justices, note Harvard law professors Jacob E. Gersen and Adrian Vermeule, in a fascinating paper titled “Delegating to Enemies,” hire only clerks whose ideologies align with their own. But others recognize that a hard-working ideological “enemy” can be more valuable, given the constraints of the job, than a slightly-less-hard-working ally. (They don’t add, but could, that the enemy clerk might work harder specifically because she knows her overarching legal theories are suspect, and therefore she has to prove herself.)

“Notwithstanding the conventional wisdom that friends are better agents than enemies, there is a longstanding practice of delegating to enemies in law and practice,” Gersen and Vermeule write.

The full paper is available here.