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