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.
Volume 97
The Myth of Efficient Breach: New Defenses of the Expectation Interest
We defend contract law’s preference to protect the expectation with a liability rule against prominent doctrinal and moral critics who argue that a promisee should have a right to specific performance or to a restitutionary remedy. These critics argue that liability rule protection limited to contractual expectations unjustifiably favors promisors, by allowing a promisor to capture the entire gain from unilaterally exiting a contract as long as she compensates her promisee for the profit he would have realized had he received the goods or services the contract described. The critics prefer to vindicate contractual expectations with a property rule or restitution.
We show that a promisee’s gross payoff under the typical contract is invariant to the remedy the law accords him. Current defenders and critics focus on gross payoffs. In this analytic universe, no remedy can be shown to be superior to any other remedy. We argue below that the promisee’s net payoff, for transaction cost reasons, is higher under a contract that protects his expectation with a liability rule. This claim supports the dual performance hypothesis, which holds that promisees typically give their promisors discretion either to trade the goods or services at issue or to make a transfer to the promisee in lieu of trade. A promisor who transfers rather than trades therefore does not breach; rather, she breaches only when she rejects both trade and transfer. On this view of the law, a promisee’s suit to recover his expectation is a specific performance action to enforce the contract’s transfer term. We further explain that this approach renders contract law coherent; it is consistent with the law’s immanent normativity; and it is consistent also with the morality of promising.
A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause
The dormant Commerce Clause, though a longstanding feature of American constitutional law, is of dubious legitimacy. Or so some argue (and many have come to believe). The Clause is the target of frequent attack by justices and commentators, usually of an originalist bent. They claim the Clause is without textual support, has “no basis” in Founding-era history, and is the platform for an unjustified intrusion of the federal judiciary into the affairs of the states.
But they’re wrong. This Article provides a comprehensive response to the dormant Commerce Clause Skeptics from an historical and originalist perspective. Far from lacking legitimacy, the Clause has deep roots in Founding history. It addresses one of the central problems that drew the Framers to the Philadelphia Convention, and it employs the very device for reviewing state legislation the Framers preferred, judicial review. From a historical perspective, the Court’s modern dormant Commerce Clause doctrine is actually far more respectful of state authority than the understanding of the Clause likely held at the time of the Framing. But looking with presentist eyes, the Skeptics miss this entirely. The story of the dormant Commerce Clause is one of many twists and turns, nearly inscrutable doctrine, and political manipulations. But no matter what other problems the doctrine may suffer, its fundamental legitimacy is not among them.