Inside Regulatory Interpretation: A Research Note

We now live in a regulatory world, where the bulk of federal lawmaking takes place at the bureaucratic level. Gone are the days when statutes and common law predominated. Instead, federal agencies—through rulemaking, adjudication, and other regulatory action—have arguably become the primary lawmakers, with Congress delegating to its bureaucratic agents vast swaths of lawmaking power, the President attempting to exercise some control over this massive regulatory apparatus, and courts struggling to constrain agency lawmaking within statutory and constitutional bounds. This story is not new. Over two decades ago, for instance, Professor Lawson lamented the rise of the administrative state and traced it back to at least the New Deal. But law schools are just now starting to catch up by requiring courses in regulation and administrative law, often in the first year. Despite the publication of thousands of law review articles and judicial opinions on the interpretation of the Constitution, statutes, contracts, and other legal texts, to date little attention has been paid to the theory or practice of regulatory interpretation. Indeed, Professor Stack’s 2012 article Interpreting Regulations, the subject of this Research Note, is the seminal piece on the topic