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Superstatute Theory and Administrative Common Law

54 Pages Posted: 29 Jan 2014 Last revised: 19 Aug 2015

Kathryn E. Kovacs

Rutgers School of Law

Date Written: September 23, 2014

Abstract

This article employs William Eskridge and John Ferejohn’s theory of superstatutes as a tool to argue that administrative common law that contradicts or ignores the Administrative Procedure Act is illegitimate. Eskridge and Ferejohn conceive of statutes that emerge from a lengthy, public debate and take on great normative weight over time as “superstatutes.” Superstatute theory highlights the deficiency in deliberation about the meaning of the APA. The APA bears all the hallmarks of a superstatute. Unlike the typical federal superstatute, however, the APA is not administered by a single agency. Thus, to respect and encourage the civic-republican style of deliberation that Eskridge and Ferejohn espouse, courts must adhere more closely to the compromises encoded in the statute’s text, paying particular attention to the context and history of each individual provision. Courts should hesitate before moving too far towards the boundaries of the text’s possible meaning. Venturing beyond those boundaries altogether is even more troubling. In the absence of an agency that spurs public deliberation about the meaning of the APA, administrative common law that contradicts or ignores the APA should be presumed to be illegitimate. 

Keywords: Administrative Law, Administrative Procedure Act, Administrative Common Law, Superstatutes, Statutory Interpretation

Suggested Citation

Kovacs, Kathryn E., Superstatute Theory and Administrative Common Law (September 23, 2014). 90 Indiana Law Journal 1207 (2015). Available at SSRN: https://ssrn.com/abstract=2386025 or http://dx.doi.org/10.2139/ssrn.2386025

Kathryn E. Kovacs (Contact Author)

Rutgers School of Law ( email )

NJ
United States

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