Inside Regulatory Interpretation: A Research Note

Abstract

In response to Kevin M. Stack, Interpreting Regulations, 111 Mich. L. Rev. 355 (2012).

In Interpreting Regulations, Professor Stack provides the first comprehensive approach to regulatory interpretation and situates this approach within the larger literature on legal interpretation. His theory of regulatory interpretation is simple yet pioneering: “a regulation should be read in light of its purposes, with the regulation’s text and the statement of basis and purpose constituting the privileged interpretive sources.” This Research Note takes a look inside regulatory interpretation to explore the empirical foundation for Professor Stack’s novel approach to regulatory interpretation.

In 2013, the author conducted a 195-question survey of 128 federal agency rule drafters at seven executive departments (Agriculture, Commerce, Energy, Homeland Security, Health and Human Services, Housing and Urban Development, and Transportation) and two independent agencies (the Federal Communications Commission and the Federal Reserve). Part I of this Research Note presents the findings from this study for the questions that were designed to assess Professor Stack’s theory of regulatory interpretation from the perspective of the agency officials who draft these statements of basis and purpose. These findings largely support his theory. Part II then takes a step back to explain how the other findings from the study bear on regulatory interpretation.

Keywords: regulatory interpretation, statement of basis and purpose, textualism, purposivism

JEL Classification: K2, K23