Law Commons^™

Revisiting The Fried Chicken Recipe, Zachary B. Pohlman

Notre Dame Law Review Reflection

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth-century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If …

Solving The Congressional Review Act’S Conundrum, Cary Coglianese

All Faculty Scholarship

Congress routinely enacts statutes that require federal agencies to adopt specific regulations. When Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, for example, it mandated that the Securities and Exchange Commission (SEC) adopt an anti-corruption regulation requiring energy companies to disclose payments they make to foreign governments. Although the Dodd-Frank Act specifically required the SEC to adopt this disclosure requirement, the agency’s eventual regulation was also, like other administrative rules, subject to disapproval by Congress under a process outlined in a separate statute known as the Congressional Review Act (CRA).

After the SEC issued its …

The New Major Questions Doctrine, Daniel Deacon, Leah Litman

Law & Economics Working Papers

This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do …

Interest-Based Incorporation: Statutory Realism Exploring Federalism, Delegation, And Democratic Design, Sheldon Evans

Faculty Publications

Statutory interpretation is a unique legal field that appreciates fiction as much as fact. For years, judges and scholars have acknowledged that canons of interpretation are often based on erudite assumptions of how Congress drafts federal statutes. But a recent surge in legal realism has shown just how erroneous many of these assumptions are. Scholars have created a robust study of congressional practices that challenge many formalist canons of interpretation that are divorced from how Congress thinks about, drafts, and enacts federal statutes. This conversation, however, has yet to confront statutory incorporation, which describes when Congress incorporates state law into …