legislation & the regulatory state
spring 2021

Below is the schedule of topics for our course this spring. We will cover one topic per class meeting.

Within each topic, all readings with page numbers and no links are from the casebook. All other readings can be accessed directly from the page for that topic.

Introduction

1. Introduction

I. Legislation and Statutory Interpretation

2. Intent and Purpose
3. Legislative History
4. Textualism
5. The Limits of Textualism
6. Linguistic Canons
7. Substantive Canons
8. Interpreting Statutes over Time

II. Agencies, Congress, and the President

A. Congressional Control of Agencies

9. The Nondelegation Doctrine
10. Demise of the Nondelegation Doctrine?
11. Congressional Control of Delegated Power

B. Presidential Control of Agencies

12. Classic Theories of Presidential Power
13. Modern Theories of the Presidential Power
14. Current Debates over Presidential Power

III. Regulating Administrative Agencies

15. The Choice Between Adjudication and Rulemaking
16. Non-Article III Tribunals
17. Due Process
18. Policymaking Through Adjudication
19. Policymaking Through Rulemaking
20. Policymaking Through Guidance and Interpretive Rules

IV. Judicial Review of Agency Decisions

A. Is the Agency’s Decision Consistent with the Statute?

21. Judicial Deference to Agency Interpretations of Law
22. Doctrinal Escape Valves: Does Deference Apply?
23. Policy Escape Valves: Too Big to Defer?

B. Is the Agency’s Policy Rational?

24. “Arbitrary or Capricious”
25. Policy Change and Agency Inaction
26. Current Debates: DACA and the Census