Contract interpretation remains the largest single source of contract litigation between business firms. In part this is because contract interpretation issues are difficult, but it also reflects a deep divide between textualist and contextualist theories of interpretation. While a strong majority of U.S. courts continue to follow the traditional, "formalist" approach to contract interpretation, some courts and most commentators prefer the "contextualist" interpretive principles as exemplified by the Uniform Commercial Code and the Second Restatement. In 2003, we published an article that set out a theory of contract interpretation to govern agreements between business firms. In that article, we support a formalist theory of contract interpretation. Our article has prompted a number of anti-formalist responses. In our article we argued that, although accurate judicial interpretations are desirable, accurate interpretations are costly for parties and courts to obtain. Thus, any socially desirable interpretive rule would trade accuracy off against contract writing and adjudication cost. This trade-off implies that risk neutral business parties will commonly prefer judicial interpretations to be made on a limited evidentiary base the most important element of which is the contract itself. But importantly, we also argued that commercial parties’ preferences along this dimension will be heterogeneous. Thus, any interpretation rules the state adopts should be defaults and the state should defer to the expressed preferences of particular parties regarding interpretation. This Review Essay clarifies and extends these arguments. We briefly summarize empirical data that support our theory, and respond to our critics. Although much academic commentary suggests otherwise, both the available evidence and prevailing judicial practice support the claim that sophisticated parties prefer textualist interpretation. Sophisticated commercial parties incur costs to cast obligations expressly in written and unconditional forms to permit a party to stand on its rights under the written contract, to improve party incentives to invest in the deal, and to reduce litigation costs. Contextualist courts and commentators prefer to withdraw from parties the ability to use these instruments for contract design. The contextualists, however, cannot justify rules that so significantly restrict contractual freedom in the name of contractual freedom.
{"title":"Contract Interpretation Redux","authors":"Alan L. Schwartz, R. Scott","doi":"10.2139/SSRN.1504223","DOIUrl":"https://doi.org/10.2139/SSRN.1504223","url":null,"abstract":"Contract interpretation remains the largest single source of contract litigation between business firms. In part this is because contract interpretation issues are difficult, but it also reflects a deep divide between textualist and contextualist theories of interpretation. While a strong majority of U.S. courts continue to follow the traditional, \"formalist\" approach to contract interpretation, some courts and most commentators prefer the \"contextualist\" interpretive principles as exemplified by the Uniform Commercial Code and the Second Restatement. In 2003, we published an article that set out a theory of contract interpretation to govern agreements between business firms. In that article, we support a formalist theory of contract interpretation. Our article has prompted a number of anti-formalist responses. In our article we argued that, although accurate judicial interpretations are desirable, accurate interpretations are costly for parties and courts to obtain. Thus, any socially desirable interpretive rule would trade accuracy off against contract writing and adjudication cost. This trade-off implies that risk neutral business parties will commonly prefer judicial interpretations to be made on a limited evidentiary base the most important element of which is the contract itself. But importantly, we also argued that commercial parties’ preferences along this dimension will be heterogeneous. Thus, any interpretation rules the state adopts should be defaults and the state should defer to the expressed preferences of particular parties regarding interpretation. This Review Essay clarifies and extends these arguments. We briefly summarize empirical data that support our theory, and respond to our critics. Although much academic commentary suggests otherwise, both the available evidence and prevailing judicial practice support the claim that sophisticated parties prefer textualist interpretation. Sophisticated commercial parties incur costs to cast obligations expressly in written and unconditional forms to permit a party to stand on its rights under the written contract, to improve party incentives to invest in the deal, and to reduce litigation costs. Contextualist courts and commentators prefer to withdraw from parties the ability to use these instruments for contract design. The contextualists, however, cannot justify rules that so significantly restrict contractual freedom in the name of contractual freedom.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2009-11-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76978296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This book challenges the myth that Congress—not the President—controls immigration law, dictating who may come to the United States, and who may stay, in a detailed and comprehensive legislative code. Drawing on a wide range of sources—rich historical materials, unique data on immigration enforcement, and insider accounts of the nation’s massive immigration bureaucracy—it reveals how the President has become our immigration policymaker-in-chief over the course of two centuries. From founding-era debates over the Alien and Sedition Acts, to Jimmy Carter’s intervention during the Mariel boatlift from Cuba, to the last two administrations’ reactions to Central American asylum seekers at the southern border, presidential crisis management has played an important role in this story. Far more foundational, however, has been the ordinary executive obligation to enforce the law. Over time, the power born of that duty has become the central vehicle for making immigration policy in the United States. In grappling with the implications of this power, the book also provides a blueprint for reform, one that accepts rather than laments the role the President plays in shaping the national community, while outlining strategies to curb the abuse of law enforcement authority in immigration and beyond.
{"title":"The President and Immigration Law","authors":"Adam Cox, Cristina M. Rodríguez","doi":"10.2139/SSRN.1356963","DOIUrl":"https://doi.org/10.2139/SSRN.1356963","url":null,"abstract":"This book challenges the myth that Congress—not the President—controls immigration law, dictating who may come to the United States, and who may stay, in a detailed and comprehensive legislative code. Drawing on a wide range of sources—rich historical materials, unique data on immigration enforcement, and insider accounts of the nation’s massive immigration bureaucracy—it reveals how the President has become our immigration policymaker-in-chief over the course of two centuries. From founding-era debates over the Alien and Sedition Acts, to Jimmy Carter’s intervention during the Mariel boatlift from Cuba, to the last two administrations’ reactions to Central American asylum seekers at the southern border, presidential crisis management has played an important role in this story. Far more foundational, however, has been the ordinary executive obligation to enforce the law. Over time, the power born of that duty has become the central vehicle for making immigration policy in the United States. In grappling with the implications of this power, the book also provides a blueprint for reform, one that accepts rather than laments the role the President plays in shaping the national community, while outlining strategies to curb the abuse of law enforcement authority in immigration and beyond.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2009-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76642220","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A B ST R ACT. Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school system. But the balkanization of school districts, oppression of nonadherents, and entanglement between church and state remain important concerns. This Note argues that there is a place for religious charter schools primarily in districts best able to ameliorate these concerns those that have sufficient resources and the diversity of religious groups necessary to create a variety of religious and nonreligious school options.
{"title":"Is There a Place for Religious Charter Schools","authors":"Ben Hillman","doi":"10.2307/20454720","DOIUrl":"https://doi.org/10.2307/20454720","url":null,"abstract":"A B ST R ACT. Recently, religious groups have sought to become charter school providers. Scholarship and popular commentary dispute the desirability of this prospect. Religious charter schools can address unmet needs of religious groups and keep them invested in the public school system. But the balkanization of school districts, oppression of nonadherents, and entanglement between church and state remain important concerns. This Note argues that there is a place for religious charter schools primarily in districts best able to ameliorate these concerns those that have sufficient resources and the diversity of religious groups necessary to create a variety of religious and nonreligious school options.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87362703","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Comment suggests a new constitutional approach to the regulation of political expenditures. The approach pushes beyond the question of whether political expenditures are more like "speech" or more like "property"' and instead focuses on which types of expenditures fit into each category. Some expenditures, but not all, are necessary to create speech. These "speechenabling" expenditures cannot be meaningfully disentangled from the communication they make possible. Other expenditures, however, provide something of value aside from the speech itself as an incentive for individuals to listen to the speech. The classic example is expenditures on advertising, which reach listeners or viewers because they wish to consume the content with which the advertising is packaged. These "audience-buying" expenditures function as property and consequently deserve less protection. Courts should uphold campaign finance regulations that are closely tailored to protecting speech-enabling expenditures while regulating audience-buying expenditures in order to enhance political equality. Individuals and organizations with access to financial resources to buy advertising can offer audiences an attractive exchange: viewers need not pay for television programs they wish to watch because they also watch the commercials packaged along with them. Advertisers usually do not pay their audience directly, but instead pay intermediary media organizations, which in turn offer audiences content they value. Though indirect, this method of providing an incentive is functionally the same as offering a DVD with entertaining content or anything else the audience values as an incentive to view the advertisement. Unlike those who can afford to advertise, those with fewer resources can reach only those who are interested in receiving their
{"title":"Buying an Audience: Justifying the Regulation of Campaign Expenditures that Buy Access to Voters","authors":"Ari Weisbard","doi":"10.2307/20454714","DOIUrl":"https://doi.org/10.2307/20454714","url":null,"abstract":"This Comment suggests a new constitutional approach to the regulation of political expenditures. The approach pushes beyond the question of whether political expenditures are more like \"speech\" or more like \"property\"' and instead focuses on which types of expenditures fit into each category. Some expenditures, but not all, are necessary to create speech. These \"speechenabling\" expenditures cannot be meaningfully disentangled from the communication they make possible. Other expenditures, however, provide something of value aside from the speech itself as an incentive for individuals to listen to the speech. The classic example is expenditures on advertising, which reach listeners or viewers because they wish to consume the content with which the advertising is packaged. These \"audience-buying\" expenditures function as property and consequently deserve less protection. Courts should uphold campaign finance regulations that are closely tailored to protecting speech-enabling expenditures while regulating audience-buying expenditures in order to enhance political equality. Individuals and organizations with access to financial resources to buy advertising can offer audiences an attractive exchange: viewers need not pay for television programs they wish to watch because they also watch the commercials packaged along with them. Advertisers usually do not pay their audience directly, but instead pay intermediary media organizations, which in turn offer audiences content they value. Though indirect, this method of providing an incentive is functionally the same as offering a DVD with entertaining content or anything else the audience values as an incentive to view the advertisement. Unlike those who can afford to advertise, those with fewer resources can reach only those who are interested in receiving their","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75515497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
A U T H 0 R. Assistant Professor of Law, University of Texas School of Law. For invaluable advice and criticism, I thank William Forbath and Talha Syed. For useful comments, I thank Michael Carroll, Anuj Desai, Chris Desan, Terry Fisher, Catherine Fisk, Mark Gergen, John Golden, Morton Horwitz, Douglas Laycock, Thomas Nachbar, Tony Reese, Mark Rose, Pamela Samuelson, and participants in the Harvard Law School graduate students colloquium and in the History of Copyright Workshop of the Berkeley Center for Law & Technology and the University of Wisconsin Institute for Legal Studies. For excellent research assistance, I thank Gretchen Harting.
A U T H 0 R.美国德克萨斯大学法学院法学助理教授。对于宝贵的建议和批评，我要感谢威廉·福巴斯和塔尔哈·赛义德。对于有用的评论，我要感谢Michael Carroll、Anuj Desai、Chris Desan、Terry Fisher、Catherine Fisk、Mark Gergen、John Golden、Morton Horwitz、Douglas Laycock、Thomas Nachbar、Tony Reese、Mark Rose、Pamela Samuelson以及哈佛法学院研究生讨论会和伯克利法律与技术中心版权历史研讨会以及威斯康星大学法律研究所的参与者。我要感谢Gretchen Harting出色的研究协助。
{"title":"The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright","authors":"O. Bracha","doi":"10.2307/20454710","DOIUrl":"https://doi.org/10.2307/20454710","url":null,"abstract":"A U T H 0 R. Assistant Professor of Law, University of Texas School of Law. For invaluable advice and criticism, I thank William Forbath and Talha Syed. For useful comments, I thank Michael Carroll, Anuj Desai, Chris Desan, Terry Fisher, Catherine Fisk, Mark Gergen, John Golden, Morton Horwitz, Douglas Laycock, Thomas Nachbar, Tony Reese, Mark Rose, Pamela Samuelson, and participants in the Harvard Law School graduate students colloquium and in the History of Copyright Workshop of the Berkeley Center for Law & Technology and the University of Wisconsin Institute for Legal Studies. For excellent research assistance, I thank Gretchen Harting.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84250897","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
appointed attorneys from abandoning their clients after trial. The Court provided that if counsel wishes to withdraw from a "frivolous" case, he or she first must file a brief referring to anything in the record that might support an appeal. Then, before permitting withdrawal, the appellate court examines the brief and the proceedings below to determine whether counsel's assessment was proper. Since deciding Anders in 1967, the Supreme Court has not determined whether this procedure also applies to appeals from civil commitment. Several recent state court decisions, however, have rejected this possibility. This Note criticizes these decisions on both doctrinal and policy grounds. First, a review of relevant case law suggests thatAnders should be viewed as derived from the Fourteenth Amendment rather than from the Sixth Amendment, furnishing a compelling constitutional basis for requiring Anders in both criminal and civil-commitment appeals. Moreover, Anders may have unique utility in furthering the norms of "therapeutic jurisprudence" by alleviating the role dilemma often manifested by civil-commitment attorneys. AUTHOR. Yale Law School, J.D. 2008; University of Southern California, B.S. 2005. This Note owes a great debt to Jesse Brush for his thoughtful suggestions and careful editing.
{"title":"The Anders Brief in Appeals from Civil Commitment","authors":"Joseph B. Frueh","doi":"10.2307/20454711","DOIUrl":"https://doi.org/10.2307/20454711","url":null,"abstract":"appointed attorneys from abandoning their clients after trial. The Court provided that if counsel wishes to withdraw from a \"frivolous\" case, he or she first must file a brief referring to anything in the record that might support an appeal. Then, before permitting withdrawal, the appellate court examines the brief and the proceedings below to determine whether counsel's assessment was proper. Since deciding Anders in 1967, the Supreme Court has not determined whether this procedure also applies to appeals from civil commitment. Several recent state court decisions, however, have rejected this possibility. This Note criticizes these decisions on both doctrinal and policy grounds. First, a review of relevant case law suggests thatAnders should be viewed as derived from the Fourteenth Amendment rather than from the Sixth Amendment, furnishing a compelling constitutional basis for requiring Anders in both criminal and civil-commitment appeals. Moreover, Anders may have unique utility in furthering the norms of \"therapeutic jurisprudence\" by alleviating the role dilemma often manifested by civil-commitment attorneys. AUTHOR. Yale Law School, J.D. 2008; University of Southern California, B.S. 2005. This Note owes a great debt to Jesse Brush for his thoughtful suggestions and careful editing.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83855826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Sentence Imposed versus the Statutory Maximum: Repairing the Armed Career Criminal Act","authors":"Ethan P. Davis","doi":"10.2307/20454713","DOIUrl":"https://doi.org/10.2307/20454713","url":null,"abstract":"","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-11-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88102351","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Although anonymity often serves as an important shield for valuable speech, it also protects online harassment that can chill or completely silence the speech of its targets. This Note argues that the public figure doctrine should be adapted to John Doe subpoenas to distinguish between online harassment and more valued anonymous speech. It then divides John Doe subpoena standards into six constituent factors, evaluates each one, and proposes a final standard that consistently balances the needs of plaintiffs and defendants and helps judges to distinguish online harassment from other forms of anonymous speech.
{"title":"John Doe Subpoenas: Toward a Consistent Legal Standard","authors":"N. Gleicher","doi":"10.2307/20454712","DOIUrl":"https://doi.org/10.2307/20454712","url":null,"abstract":"This Note considers the rising trend of anonymous online harassment and the use of John Doe subpoenas to unmask anonymous speakers. Although anonymity often serves as an important shield for valuable speech, it also protects online harassment that can chill or completely silence the speech of its targets. This Note argues that the public figure doctrine should be adapted to John Doe subpoenas to distinguish between online harassment and more valued anonymous speech. It then divides John Doe subpoena standards into six constituent factors, evaluates each one, and proposes a final standard that consistently balances the needs of plaintiffs and defendants and helps judges to distinguish online harassment from other forms of anonymous speech.","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-10-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83120222","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated. author. Assistant Professor, Harvard Law School. I am grateful to Richard Fallon, Eugene Kontorovich, Daryl Levinson, John Manning, Jonathan Masur, John McGinnis, Martha Minow, Bob Powell, Mark Tushnet, Adrian Vermeule, and participants in the 2007 Harvard-Berkeley Conference on Constitutions & Consequences for helpful comments on earlier drafts. STEPHENSON OP 10/14/2008 11:21:15 AM the price of public action
本文认为，法院可以，而且通常应该，通过制定理论来实施宪法保障，这些理论提高了政府决策者制定有宪法问题的政策的成本。这种间接的方法可能会实现一种隐含的利益平衡，在这种平衡中，对宪法价值的损害与政府在受到挑战的政策中的利益强度进行权衡，比其他方法更有效。当政府比审查法院更了解被质疑的政策对宪法相关利益的影响时，提高的制定成本充当了一种筛选工具:如果政府在面临大量额外的制定成本时仍会制定既定政策，那么该政策服务于重大政府利益的可能性可能更高。本文首先展开了理论论证，即操纵立法成本的理论如何(以及在什么条件下)可能比需要对竞争利益的相对实力进行直接司法评估的理论更有效地实现宪法的司法实施。该条进一步认为，联邦司法机构已经有能力形成以这种方式发挥作用的原则，而且目前的原则对立法制定成本的影响确实超出了人们的普遍认识。作者。哈佛法学院助理教授。我感谢Richard Fallon, Eugene Kontorovich, Daryl Levinson, John Manning, Jonathan Masur, John McGinnis, Martha Minow, Bob Powell, Mark Tushnet, Adrian Vermeule以及2007年哈佛-伯克利宪法与后果会议的参与者对早期草案的有益评论。公共行动的代价
{"title":"The Price of Public Action: Constitutional Doctrine and the Judicial Manipulation of Legislative Enactment Costs","authors":"M. Stephenson","doi":"10.2307/20454703","DOIUrl":"https://doi.org/10.2307/20454703","url":null,"abstract":"This Article argues that courts can, and often should, implement constitutional guarantees by crafting doctrines that raise the costs to government decisionmakers of enacting constitutionally problematic policies. This indirect approach may implement a kind of implicit balancing of interests, in which the damage to constitutional values is weighed against the strength of the government’s interest in the challenged policy, more effectively than alternative approaches. When the government has better information than the reviewing court about the effect of the challenged policy on constitutionally relevant interests, heightened enactment costs act as a kind of screening device: if the government would still enact a given policy in the face of substantial additional enactment costs, the probability that the policy serves significant government interests is likely to be higher. This Article first develops the theoretical argument as to how (and under what conditions) doctrines that manipulate legislative enactment costs may be more effective tools for judicial implementation of the Constitution than doctrines that require direct judicial assessment of the relative strength of the competing interests. The Article further contends that the federal judiciary already has the capacity to fashion doctrines that function in this way, and indeed current doctrine influences legislative enactment costs more than has generally been appreciated. author. Assistant Professor, Harvard Law School. I am grateful to Richard Fallon, Eugene Kontorovich, Daryl Levinson, John Manning, Jonathan Masur, John McGinnis, Martha Minow, Bob Powell, Mark Tushnet, Adrian Vermeule, and participants in the 2007 Harvard-Berkeley Conference on Constitutions & Consequences for helpful comments on earlier drafts. STEPHENSON OP 10/14/2008 11:21:15 AM the price of public action","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77855417","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress - norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separation of powers? One the one hand, courts have traditionally sought to protect these constitutionally inspired values by applying normative canons of construction. Such interpretive default rules - like reading statutes so as not to raise constitutional issues, not to preempt state tort protections, or not to affect tribal power detrimentally - provide a judicial means for resolving statutory ambiguity with background norms in mind. One the other hand, after the Supreme Court's Chevron decision, authority to interpret unclear regulatory statutes generally belongs, not to judges, but to agencies. This question has polarized courts and commentators. A majority, including the Supreme Court, adopt a categorical approach in which canons trump Chevron, displacing the agency's interpretive role altogether. A minority, including the Ninth Circuit, conclude the opposite: that courts should not apply canons, but leave full interpretive discretion to agencies. This Article rejects both categorical approaches. The first ignores the fact that, while normative canons are intended to promote judicial restraint in resolving political questions, they often give judges great discretion in deciding whether or not important background norms should, or should not, be protected, and in making broader public policy choices unrelated to the normative canon itself. Exercising that discretion, moreover, frequently involves assessments regarding the practical impact of those choices, and about the merits of administrative policy generally, which judges are often ill-suited to make. The minority approach, by contrast, recognizes that agencies - because of their policy expertise, their sensitivity to political forces, and their ability to provide a forum for representation and accommodation in policymaking - may sometimes provide the best location for reconciling policy goals with background norms. Yet it fails to provide agencies with any incentive to engage in such behavior, or reflect any discernment regarding when administrative capacity could be helpful, and when it would not. It constitutes, essentially, an abdication of responsibility for norm protection. The Article then proposes an alternate analytic framework. It argues that whether an agency policy comports with background norms should be considered as part of Chevron's case-by-case step-two inquiry into whether the policy is reasonable. Unlike the categorical approaches, this context-sensitive solution creates incentives for robust agency norm-protection in the first instance, but also permits courts to apply normative canons independently when administrative decisionmaking either offers little advantage, or fails to account for the background va
{"title":"Normative Canons in the Review of Administrative Policymaking","authors":"K. Bamberger","doi":"10.2307/20454704","DOIUrl":"https://doi.org/10.2307/20454704","url":null,"abstract":"Who should ensure that statutes are interpreted to reflect background norms left unaddressed by Congress - norms like respect for the rights of regulated parties, protection of the interests of states and Native American tribes, avoidance of government bias, and the separation of powers? One the one hand, courts have traditionally sought to protect these constitutionally inspired values by applying normative canons of construction. Such interpretive default rules - like reading statutes so as not to raise constitutional issues, not to preempt state tort protections, or not to affect tribal power detrimentally - provide a judicial means for resolving statutory ambiguity with background norms in mind. One the other hand, after the Supreme Court's Chevron decision, authority to interpret unclear regulatory statutes generally belongs, not to judges, but to agencies. This question has polarized courts and commentators. A majority, including the Supreme Court, adopt a categorical approach in which canons trump Chevron, displacing the agency's interpretive role altogether. A minority, including the Ninth Circuit, conclude the opposite: that courts should not apply canons, but leave full interpretive discretion to agencies. This Article rejects both categorical approaches. The first ignores the fact that, while normative canons are intended to promote judicial restraint in resolving political questions, they often give judges great discretion in deciding whether or not important background norms should, or should not, be protected, and in making broader public policy choices unrelated to the normative canon itself. Exercising that discretion, moreover, frequently involves assessments regarding the practical impact of those choices, and about the merits of administrative policy generally, which judges are often ill-suited to make. The minority approach, by contrast, recognizes that agencies - because of their policy expertise, their sensitivity to political forces, and their ability to provide a forum for representation and accommodation in policymaking - may sometimes provide the best location for reconciling policy goals with background norms. Yet it fails to provide agencies with any incentive to engage in such behavior, or reflect any discernment regarding when administrative capacity could be helpful, and when it would not. It constitutes, essentially, an abdication of responsibility for norm protection. The Article then proposes an alternate analytic framework. It argues that whether an agency policy comports with background norms should be considered as part of Chevron's case-by-case step-two inquiry into whether the policy is reasonable. Unlike the categorical approaches, this context-sensitive solution creates incentives for robust agency norm-protection in the first instance, but also permits courts to apply normative canons independently when administrative decisionmaking either offers little advantage, or fails to account for the background va","PeriodicalId":48293,"journal":{"name":"Yale Law Journal","volume":null,"pages":null},"PeriodicalIF":6.4,"publicationDate":"2008-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74498687","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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