Subtitution Strategies

Jacob E. Gersen

Responding to Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 Harv. L. Rev. 528 (2006)

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 judge's own best reading of the statute. Second, courts want to maximize the agency's ability to advance its policy agenda. 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.

120 Harv. L. Rev. F. 21 (2006) | DOWNLOAD PDF

Should Antitrust Condemn Tying Arrangements that Increase Price Without Restraining Competition?

Steven Semeraro :: In his article Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, Professor Einer Elhauge attempted to demonstrate that tying, the practice whereby a firm conditions the sale of one product on the customer’s agreement to purchase another, always harms consumers. He determined that antitrust law should prohibit tying even when that tying did not restrain competition in the tied product’s market. In this response, Professor Steven Semeraro argues that this form of tying actually benefits consumers in the long term. READ MORE

Disappearing Neighbors

David D. Troutt :: In his article Mobile Capital, Local Economic Regulation, and the Democratic City, Professor Richard C. Schragger explored the consequences of local governments’ attempts to entice — and then exploit — mobile capital. He concluded that cities possess, but must not abuse, the power to assert democratic control over capital flow. In this response, Professor David D. Troutt argues that current foreclosure crisis demonstrates the weakness of cities in relation to mobile capital. READ MORE

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Cynthia Estlund :: In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. READ MORE

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