Courts | Law | Legislation
In Interpreting Statutes in the Regulatory State, Cass Sunstein grapples with two of the most difficult and important questions concerning governance of the modern administrative state. First, what institution should have the dominant role in interpreting ambiguous agency-administered statutes? And second, how should the institution perform that task? Sunstein rejects the Supreme Court's answer to the first question, characterizing its assignment of a dominant interpretive role to agencies in Chevron U.S.A., Inc. v Natural Resources Defense Council as "the fox guarding the hen house." Sunstein prefers to charge judges with the responsibility of resolving most interpretive disputes. In answer to the second question, he constructs a new canonical roadmap to guide judges in performing this interpretive function. Sunstein's goal is not merely to answer two of the most perplexing questions in public law, however. His proposed interpretive roadmap is designed simultaneously to solve the public policy puzzle that most vexes students of political science, political economics, and public law: How can government close the yawning gap between the large and theoretically attainable benefits of agency-administered statutory schemes and the modest benefits frequently combined with perverse effects that government intervention actually yields? Sunstein attributes this disappointing disparity to a series of political and regulatory pathologies identified in the social science literature. His proposed solutions to the problems that plague the administrative state then coincide with his proposed answers to the two public law questions he addresses: Judges should interpret agency-administered statutes in ways that counteract political and regulatory pathologies.
Eben Moglen & Richard J. Pierce Jr.,
Sunstein's New Canons: Choosing the Fictions of Statutory Interpretation Exchange,
U. Chi. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3001