John F. Manning - Legislation and Regulation: Cases and Materials

EDITORIAL BOARD

Robert C. Clark

Directing Editor

Distinguished Service Professor and Austin Wakeman Scott
Professor of Law and Former Dean of the Law School
Harvard University

Daniel A. Farber

Sho Sato Professor of Law and Director, Environmental Law Program
University of California at Berkeley

Heather K. Gerken

J. Skelly Wright Professor of Law
Yale University

Samuel Issacharoff

Bonnie and Richard Reiss Professor of Constitutional Law
New York University

Herma Hill Kay

Barbara Nachtrieb Armstrong Professor of Law and
Former Dean of the School of Law
University of California at Berkeley

Harold Hongju Koh

Sterling Professor of International Law and
Former Dean of the Law School
Yale University

Saul Levmore

William B. Graham Distinguished Service Professor of Law and
Former Dean of the Law School
University of Chicago

Thomas W. Merrill

Charles Evans Hughes Professor of Law
Columbia University

Robert L. Rabin

A. Calder Mackay Professor of Law
Stanford University

Carol M. Rose

Gordon Bradford Tweedy Professor Emeritus of Law and Organization and
Professional Lecturer in Law
Yale University
Lohse Chair in Water and Natural Resources
University of Arizona

University Casebook SerieS

Legislation and Regulation

CASES AND MATERIALS

THIRD EDITION

John F. Manning

Morgan and Helen Chu Dean and Professor of Law
Harvard Law School

Matthew C. Stephenson

Professor of Law
Harvard Law School

The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

University Casebook Series is a trademark registered in the U.S. Patent and Trademark Office.

2010 THOMSON REUTERS/FOUNDATION PRESS

2013 by LEG, Inc. d/b/a West Academic Publishing

2017 LEG, Inc. d/b/a West Academic

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Printed in the United States of America

ISBN: 978-1-63460-647-9

The editors dedicate this book
to their families

PREFACE

This casebook is designed for a first-year course on Legislation and Regulation. Harvard Law School introduced such a course as part of a more general package of reforms to the first-year curriculum in September 2006. The purpose of this course is to teach students both how federal statutory and regulatory law is made, and how judges and administrative interpreters construe these legal materials. The course also serves as a foundation for courses in the upper-level curriculum, including Administrative Law, Environmental Law, Labor Law, Securities Law, Employment Law, Bankruptcy, Taxation, and numerous other courses in which statutes and regulations are central.

The casebook consists of five chapters. Chapters One and Two focus on the legislation element of the course, introducing students to the theory and practice of statutory interpretation. Chapter One introduces classic themes and controversies in statutory interpretation, such as the conflict between a statutes text and apparent purpose, different approaches to construing statutory language, and the appropriate role of extrinsic materials (particularly legislative history) in statutory interpretation. Chapter Two continues the exploration of the theory and practice of statutory interpretation by examining the role of canons of construction (both semantic and substantive).

Chapters Three and Four focus on the regulation element of the course, introducing students to the legal architecture that both enables and constrains regulatory policymaking by administrative agencies. Chapter Three explores the constitutional framework of the modern administrative state and presents the core doctrines and practices that structure the relationship between the agencies and the President and Congress. Chapter Four deals with the administrative rulemaking process and related topics, focusing in particular on the legal apparatus established by the Administrative Procedure Act (APA) and the judicial decisions construing that statute.

Chapter Five integrates the legislation and regulation aspects of the course by focusing on judicial review of agencies interpretations of the statutes that they administer. Chapter Five thus revisits many of the issues covered in Chapters One and Two, but in the context of statutes interpreted in the first instance by administrative agencies. This gives students an opportunity to consider the appropriate allocation of interpretative authority between courts and agencies, as well as a chance to consolidate their understanding of some of the core concepts of interpretation found in Chapters One and Two. It also lends itself to review and further consideration of issues pertaining to the appropriate role and function of agencies in our system of government (the central theme of Chapters Three and Four).

A few words on our general approach to constructing this casebook: First, the two of us sought to meld somewhat different perspectives. One of the editors (Manning) takes a more doctrinal, structural, and historical approach to the material. The other (Stephenson) approaches many of the same questions from a more pragmatic, instrumentalist, and social scientific perspective. Each editor is friendly to the others approach, and we tried to craft a book that blended a broad range of doctrinal, political science, historical, economic, and philosophical perspectives on the cases and materials we selected. Second, we erred on the side of including more of the principal cases, making the excerpted cases somewhat longer than in other casebooks. Our experience in teaching these materials has been that cutting the cases too much can make the cases harder to understand by disrupting the flow or omitting key elements of the argument. (One style point: In our editing of the principal cases, we indicate with ellipses where we were omitting substantive material, but we generally do not indicate where we omit citations.) Third, we have tried, in the notes following the cases, to give the students context for understanding how the case fits in with the fabric of the law more generally and with related material in the casebook. In so doing, we have tried to make the notes as modular as possible, permitting instructors to assign the ones that most interest them. Finally, we have tried to lay out basic concepts in a way that makes the book accessible for first-years, but we have sought to make the treatment in-depth enough to engage upper level students as well.

This casebook has been the product of tremendous effort by a large number of people. Neither the book nor the Harvard Legislation and Regulation course would exist without the vision and leadership of Elena Kagan and Martha Minow, who spearheaded the curricular reform and oversaw the development of the course, or without the invaluable contributions of our colleagues David Barron, Jody Freeman, Todd Rakoff, Mark Tushnet, and Adrian Vermeule, who participated in this process. We also benefitted tremendously from our colleagues who spoke to us during the early development of these materials, used them in draft form, or provided feedback on the first and second editions of the casebook: Jonathan Adler, Rachel Barkow, Jack Beermann, Susan Davies, Einer Elhauge, Jody Freeman, Jake Gersen, Caitlyn Halligan, Kristin Hickman, Roderick Hills, Sally Katzen, David Lewis, David Marcus, Anne Joseph OConnell, Todd Rakoff, Samuel Rascoff, Christina Rodriguez, Adam Samaha, Peter Strauss, Adrian Vermeule, and Alexander Volokh. We thank our outstanding research assistants on all three editions: Katie Booth, Natascha Born, Thomas Burnett, Stanley Chen, Ryan Doerfler, Avishai Don, Jeremy Feigenbaum, Parimal Garg, Jeanne Jeong, Janet Kim, Brad King, Maria Lacayo, Chunghang Joshua Lee, Noah Marks, Matthew Muntean, Jason Neal, Leif Overvold, Ryan Park, Stacie Payne, Paul Ray, Colleen Roh, Andrew Rohrbach, Benjamin Snyder, Clara Spera, David Tassa, Alice Wang, Jordan Wish, and Maile Yeats-Rowe. They performed heroic feats of substantive analysis, proofreading, and cite-checking, and their excellent work saved us from error and vastly improved the quality of the book. We are grateful to John Bloomquist, Tessa Boury, Jim Coates, JoAnn Grinstead, Cathy Lundeen, Greg Olson, Ryan Pfeiffer, and Robb Westawker of Foundation Press for their good advice, excellent editing, and strong support on the casebooks three editions. We are also grateful to Kaitlin Burroughs, Sarah Davitt, Jennifer Minnich, and Margaret Flynn for their vigilant and unflagging faculty assistance in the preparation of these materials. Last but not least, we thank the hundreds of students in our Legislation and Regulation classes who have road tested these materials and whose comments made them better.