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Capture Theory And The Courts: 1967-1983, Thomas W. Merrill
Capture Theory And The Courts: 1967-1983, Thomas W. Merrill
Faculty Scholarship
The Administrative Procedure Act ("APA") is a framework statute, not a complete code. Its central provisions are rather spare, and a number of important questions are not covered at all. It comes as no surprise, therefore, that the judicial gloss on the APA has taken on a large significance over time. It should also come as no surprise that this interpretative mantle has assumed a different shape with different generations of judges. In this respect, our experience with the APA parallels that with the Constitution. Occasionally there is a feint in the direction of enforcing the "original understanding" of the …
When The Judge Is Not The Primary Official With Responsibility To Read: Agency Interpretation And The Problem Of Legislative History, Peter L. Strauss
When The Judge Is Not The Primary Official With Responsibility To Read: Agency Interpretation And The Problem Of Legislative History, Peter L. Strauss
Faculty Scholarship
As the other pages of this journal reflect, writing about statutory interpretation commonly builds on unarticulated assumptions about the occasion for interpretation, the identity of the interpreter, and the character of the interpreted text. In this paradigm, the occasion for interpretation is a litigated case – an episode has occurred for which the application of the statute is problematic. The interpreter is a judge, a person who resolves litigation – typically episodic, typically backwards – working outside of politics, and bearing no generic responsibility (that is, responsibility outside the decision of the case before her) for the statutory regime. And …