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| In The Strategic Substitution Effect (SSE) world, judges care about two things: textual plausibility and agency flexibility. First, all else equal, courts want agencies to adopt more textually plausible statutory interpretations rather than less plausible ones. Therefore, courts prefer that agencies adopt interpretations that closely correspond to judgesÍ own best reading of the statute. Second, courts want to ñmaximize the agencyÍs ability to advance its policy agenda.î Judges in the model recognize that agencies have policy expertise, a greater ability to evaluate scientific evidence, and enhanced democratic accountability. |
| The world that SSE describes is an intriguing one. Unfortunately, it is a far cry from our world. While the underlying logic in SSE is powerful, it also seems inconsistent with much administrative law. This is not, of course, a critique of the internal coherence of the model, but when the divergence is so stark, it suggests there is fundamental confusion in either the courts or SSE itself. [ More ] |
Suggested citation: Jacob E. Gersen, Substitution Strategies, 121 Harv. L. Rev. F. 21 (2007), http://www.harvardlawreview.org/forum/issues/120/dec06/gersen.pdf
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