Modeling Agency / Court Interaction

Emerson Tiller & Frank B. Cross

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)

The positive political theory of legal rules, such as those providing for judicial review, has received far too little attention. Professor Matthew Stephenson’s analysis of his strategic substitution effect is therefore a significant development. In this Response, we acknowledge that he has made some material and valuable advances in the way we should think about the positive interaction of agencies and courts. However, his model has important limitations and in practice it may describe less than we would like. Nonetheless, the Article’s value can be found in its original conceptual ideas, which may be expanded upon to develop a more valuable theory of the effect of legal rules in administrative law.



120 Harv. L. Rev. F. 13 (2006) | DOWNLOAD PDF