Statutory Interpretation
Accountability, Deference, and the Skidmore Doctrine
119 Yale L.J. 2096 (2010). This Note argues that government agencies should receive substantial deference when they interpret statutes informally under the standard of Skidmore v. Swift & Co. A key reason why courts defer to agencies is that agencies are more politically accountable than courts. Current legal scholarship, however, reflects an outdated view of accountability that does not reflect the insights of modern political science. Modern political scientists emphasize that agency officials are held accountable through a variety of mechanisms beyond formalistic procedures or direct electoral ties to the populace. The Note correspondingly offers an innovative justification as well as a fresh critique of a substantial body of cases implementing the Skidmore standard. Furthermore, this Note suggests a model for how courts should handle informal agency interpretations of statutes. Courts could compare their treatment of such decisions to the familiar standard of “persuasive precedent.” This proposed Skidmore standard is largely consistent with recent Supreme Court precedent, though the Court should still benefit from clarification of the doctrine.
The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism
119 Yale L.J. 1750 (2010). This Article offers the first close study of statutory interpretation in several state courts of last resort. While academics have spent the past decade speculating about the “death of textualism,” the utility of legislated rules of interpretation, and the capacity of judges to agree on a single set of interpretive rules, state courts, as it turns out, have been engaging in real-world experiments in precisely these areas. Several state courts have articulated governing interpretive regimes for all statutory questions. Methodological stare decisis—the practice of giving precedential effect to judicial statements about methodology—is generally absent from federal statutory interpretation, but appears to be a common feature of some states’ statutory case law. Every state legislature in the nation has enacted certain rules of interpretation, which some state courts are, in an unexpected twist, flouting. And, far from textualism being “dead,” what emerges from these state cases is a surprisingly strong consensus methodology—what this Article terms “modified textualism”—a theory that shares textualism’s core components but has broader potential appeal. These state developments offer a powerful counter-paradigm to that of the U.S. Supreme Court, where persistent interpretive divides and a refusal to treat methodological statements as precedential have made interpretive consensus seem impossible. They also highlight that, for all the energy that the statutory interpretation wars have consumed, the legal status of methodology itself—whether it is “law” or something “less”—remains entirely unresolved.
Regulating in the Shadow of the U.C.C.: How Courts Should Interpret State Consumer Protection Laws
119 Yale L.J. 1329 (2010).
A Case for Varying Interpretive Deference at the State Level
119 Yale L.J. 373 (2009).
The Continuing Viability of Medicaid Rights After the Deficit Reduction Act of 2005
Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257
Disregarding Foreign Relations Law
116 Yale L.J. 1230 (2007) What deference is due the executive in foreign relations? Given the considerable constitutional authority and institutional virtues of the executive in this realm, some judicial deference is almost certainly appropriate. Indeed, courts currently defer to the executive in a large number of cases. Eric Posner and Cass Sunstein nevertheless call for a dramatic expansion in the deference that courts accord executive interpretations of law in the foreign affairs context. They maintain that courts should presumptively give Chevron-style deference to executive interpretations of foreign relations law—even if the executive interpretation is articulated only as a litigation position, and even if it violates international law. In our view, substantial deference to the executive is singularly inappropriate in a large swath of cases eligible for Chevron deference under their proposal—namely, those involving foreign relations law that operates in what we call the “executive-constraining zone.” Courts have scrutinized, and should continue to scrutinize, executive interpretations of international law that has the status of supreme federal law, that is made at least in part outside the executive, and that conditions the exercise of executive power. Failure to do so would undermine the rule of law in the foreign relations context. It would also dramatically increase the power of the President in ways that would subvert the nation’s interests, discourage the executive from developing important internal checks on presidential power, and lead to less congressional regulation of the executive. In short, we maintain that deference at some point invites disregard and that law-interpreting authority at some point effectively constitutes lawbreaking authority.
Six Puerto Rican Congressmen Go to Washington
116 Yale L.J. 1389 (2007) Read José R. Coleman Tió's Pocket Part Essay adapted from this Comment. Read John C. Fortier's Response, The Constitution Is Clear: Only States Vote in Congress. Read Christina Duffy Burnett's Response, Two Puerto Rican Senators Stay Home.
Reconstructing Section 5: A Post-Katrina Proposal for Voting Rights Act Reform
116 Yale L.J. 1116 (2007) Section 5 of the Voting Rights Act (VRA)—the preclearance provision that is the most potent weapon in the nation’s civil rights arsenal—quietly suffered an unexpected defeat in the aftermath of Hurricane Katrina. The “static benchmarking test” used to administer section 5 failed to fulfill a core VRA mandate: the preservation of minority political power. This Note provides the first critical account of this failure and argues that it transcends the specifics of Katrina. The Note then proposes a narrowly tailored doctrinal “fix” to resurrect section 5’s enforcement powers after a disaster.
Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule's Proposal
Chevron as a Voting Rule
116 Yale L.J. 676 (2007) In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections. Read responses to Chevron as a Voting Rule in The Yale Law Journal Pocket Part: Richard J. Pierce, Jr., Chevron Should Not Be Converted into a Voting Rule: A Response to Gersen and Vermeule’s Proposal, 116 Yale L.J. Pocket Part 248 (2007), http://thepocketpart.org/2007/01/25/pierce.html. Matthew C. Stephenson, The Costs of Voting Rule Chevron: A Comment on Gersen and Vermeule’s Proposal, 116 Yale L.J. Pocket Part 238 (2007), http://thepocketpart.org/2007/01/25/stephenson.html.