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THE STRATEGIC SUBSTITUTION EFFECT:
Matthew C. Stephenson, Harvard Law School
ABSTRACT:
This Article presents a positive theoretical analysis of the relationship between the textual plausibility and procedural formality of agency statutory interpretations. The Article’s central claim is that textual plausibility and procedural formality function as strategic substitutes: Increasing either the textual plausibility or the procedural formality of an agency’s interpretive decision increases the agency’s chances of surviving judicial scrutiny, but both of these options impose costs on the agency, and so the agency will rationally choose the optimal mix of textual plausibility and procedural formality in order to secure the greatest policy advantages at the least cost. Changes that increase or decrease the costs or benefits associated with one of these two variables (plausibility and formality) will not only have a direct effect on that variable, but, because of the agency’s rational optimization, will also have an indirect effect on the other variable as well. The analysis generates a variety of predictions regarding the behavioral effects of various administrative law doctrines. While several of these predictions are straightforward, others are less intuitive and more novel. These results suggest that several important and longstanding debates in administrative law are incomplete without fuller consideration of the strategic substitution effect.
SUGGESTED CITATION:
Matthew C. Stephenson,
"THE STRATEGIC SUBSTITUTION EFFECT:"
(December 17, 2007).
Harvard Law School.
Harvard Law School Faculty Scholarship Series.
Paper 6.
http://lsr.nellco.org/harvard/faculty/papers/6
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