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The One Percent Problem
(Columbia Law Review, 2011)
Parties frequently seek exemption from regulation on the ground that they contribute only a very small share to a problem. These one percent arguments are not inherently questionable; it can be efficient to exclude relatively ...
Interpreting Regulations
(Michigan Law Review, 2012)
The age of statutes has given way to an era of regulations, but our jurisprudence has fallen behind. Despite the centrality of regulations to law, courts have no intelligible approach to regulatory interpretation. The ...
Obama's Equivocal Defense of Agency Independence
(Constitutional Commentary, 2010)
You can't judge a President by his view of Article II. At the very least, only looking to a President's construction of Article II gives a misleading portrait of the actual legal authority recent Presidents have asserted. ...
The Inference from Authority to Interpretive Method in Constitutional and Statutory Domains
(Cornell Law Review, 2017)
Should courts interpret the Constitution as they interpret statutes? This question has been answered in a wide variety of ways. On the one hand, many scholars and jurists understand constitutional and statutory interpretation ...
The Constitutional Ratchet Effect
(Cornell Law Review, 2017)
Christopher Serkin and Nelson Tebbe take an inductive and empirical approach to constitutional interpretation and elaboration. They ask whether attributes of the Constitution justify interpretive exceptionalism--that is, ...
Purposivism in the Executive Branch: How Agencies Interpret Statutes
(Northwestern University Law Review, 2015)
After decades of debate, the lines of distinction between textualism and purposivism have been carefully drawn with respect to the judicial task of statutory interpretation. Far less attention has been devoted to the ...
An Administrative Jurisprudence: The Rule of Law in the Administrative State
(Columbia Law Review, 2015)
This Essay offers a specification of the rule of law’s demands of administrative law and government inspired by Professor Peter L. Strauss’s scholarship. It identifies five principles—authorization, notice, justification, ...
Lessons from the Turn of the Twentieth Century for First-Year Courses on Legislation and Regulation
(Journal of Legal Education, 2015)
This essay — part of a special journal issue on Legislation and Regulation and Regulatory State courses as core elements of the law school curriculum — approaches the debate over adopting these courses by looking back to ...
The Interpretive Dimension of Seminole Rock
(George Mason Law Review, 2015)
A lively debate has emerged over the deferential standard of review courts apply when reviewing an agency’s interpretation of its own regulations. That standard, traditionally associated with Bowles v. Seminole Rock & Sand ...
Agency Independence After PCAOB
(Cardozo Law Review, 2011)
Separation of powers has a new endeavor. The PCAOB decision
makes the validity of good-cause removal protections depend on the
separation of adjudicative from policymaking and enforcement
functions within the agency. At a ...