The framework for judicial review of agency statutory interpretations is based on a legal fiction – namely, that Congress intends to delegate interpretive authority to agencies. Critics argue that the fiction is false because Congress is unlikely to think about the delegation of interpretive authority at all, or in the way that the Court imagines. They also contend that the fiction is fraudulent because the Court does actually care about whether Congress intends to delegate interpretive authority in any particular instance, but applies a presumption triggered by statutory ambiguity or a particularized analysis involving factors unrelated to congressional delegation. In this Essay, I argue that critics have misjudged the fiction. First, there is direct evidence that Congress attends to the delegation of interpretive authority and is likely to view the delegation of regulatory authority as sufficient to convey a delegation of interpretive authority. Second, there is indirect evidence that the Court’s framework tracks how Congress decides to delegate. The Court is employing a fiction in the sense that it is not looking for actual legislative intent but is imputing legislative intent. But that fiction is no different in kind than the one that the Court employs in other contexts. By viewing the fiction of congressional delegation as worse than it is, critics have had license to disregard it in evaluating how to allocate interpretive authority between courts and agencies. My argument would bring that issue back to how Congress designs statutes.
Essay
The Constitutionality and Advisability of Recess Appointments of Article III Judges
Second Opinions and Institutional Design
In many settings, decisionmakers seek second opinions, and are wise to do so. Sometimes decisionmakers do not seek second opinions when they should have, or seek them when they should not have. In yet other settings, legal rules require decisionmakers to seek second opinions before taking action.
There is a burgeoning literature on second opinions in professional contexts, as when patients or clients seek advice from doctors or lawyers. My aim, by contrast, is to analyze second opinions as a technique for the design of lawmaking institutions. I will try to show that many institutional structures, rules and practices have been justified as mechanisms for requiring or permitting decisionmakers to obtain second opinions; examples include judicial review of statutes or of agency action, bicameralism, the separation of powers, and the law of legislative procedure. I attempt to identify the main costs and benefits of second opinions, to identify the conditions under which second-opinion arguments prove more or less successful, and to consider how the lawmaking system might employ second-opinion mechanisms to greater effect.
Part I provides an analytic taxonomy of second-opinion mechanisms and introduces some conceptual distinctions. Part II analyzes the main benefits and costs of second-opinion mechanisms, and then ties the benefits and costs together with some comparative statics, attempting to identify general conditions under which second-opinion mechanisms are desirable or undesirable. Part III applies the analysis to legislative structure and procedure, and to judicial stare decisis. I claim, among other things, that the Supreme Court should adopt a norm that two successive decisions, not merely one, are necessary to create binding law.