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Justice Stevens And The Chevron Puzzle, Thomas W. Merrill
Justice Stevens And The Chevron Puzzle, Thomas W. Merrill
Faculty Scholarship
Justice Stevens's most famous decision – Chevron U.S.A. Inc. v. NRDC – has come to stand for an institutional choice approach to agency interpretation. But there is no evidence that Justice Stevens shared this understanding. Instead, he followed an equilibrium-preserving approach, which sought to nudge agencies to reconsider decisions the Justice regarded as unreasonable. Although the equilibrium-preserving approach is consistent with what a common law judge would embrace, the institutional choice perspective is probably more consistent with the needs of the modem administrative state, and it appears the Court as a whole is gradually adopting that perspective.
Preemption And Institutional Choice, Thomas W. Merrill
Preemption And Institutional Choice, Thomas W. Merrill
Faculty Scholarship
Public law scholarship is increasingly turning from questions about the content of law to questions about which institution should determine the content of the law – that is, to "deciding who decides." Implicit in this turn is the understanding that public law – including broadly not just constitutional law, but also administrative law and statutory interpretation – consists of norms that are contestable and changing. In a world of normative flux, the question naturally occurs: Who should be responsible for "say[ing] what the law is?" The answer traditionally given by American legal academics – the federal courts, and especially the …
The Constitution And The Cathedral: Prohibiting, Purchasing, And Possibly Condemning Tobacco Advertising, Thomas W. Merrill
The Constitution And The Cathedral: Prohibiting, Purchasing, And Possibly Condemning Tobacco Advertising, Thomas W. Merrill
Faculty Scholarship
This Article has both theoretical and practical objectives, which are closely interrelated. The theoretical objective is to develop a framework for understanding the "transaction structure" of constitutional rights. By this, I refer to the different rules that determine when the government may purchase, condemn, or otherwise extinguish constitutional rights. The practical objective is to consider different options that may be available to the government, as part of a broader effort to reduce the incidence of smoking, to curtail tobacco advertising that would otherwise be protected under the First Amendment. It is my hope that the theoretical framework will illuminate the …
Pluralism, The Prisoner's Dilemma, And The Behavior Of The Independent Judiciary, Thomas W. Merrill
Pluralism, The Prisoner's Dilemma, And The Behavior Of The Independent Judiciary, Thomas W. Merrill
Faculty Scholarship
Discussions of Thayer's conception of judicial review, as this symposium amply demonstrates, tend to be normative. Professor Nick Zeppos's paper, which offers more of a positive analysis, is therefore a welcome addition. Zeppos's paper includes three especially valuable insights. First, he demonstrates the close parallel between Thayer's theory of judicial review and the Supreme Court's Chevron doctrine. The former would have the judiciary enforce clear constitutional commands but otherwise defer to legislative understandings of constitutional meaning; the latter would have courts enforce clear legislative commands but otherwise defer to administrative interpretations of statutes. Second, he offers evidence that in both …