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The authority and interpretation of regulations

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Phillipa Weeks Staff Library

ANU College of Law

5 Fellows Road

The Australian National University, Acton 2600

Australia

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This article defends a theory of regulatory authority and situates their interpretation within contemporary jurisprudence. Over the past 50 years, modern legal systems have increasingly turned to regulations—secondary legislation issued by departments and administrative bodies—to impose obligations on private parties, multiplying the occasions and significance of regulatory interpretation. But regulatory interpretation has received little jurisprudential consideration based on the assumption that statutory interpretation subsumes or identifies all that might be of interest in regulatory interpretation. Regulations, however, require their own interpretive approach.

Developing an account of regulatory interpretation requires understanding the authority of regulations just as theories of statutory interpretation are founded on a conception of legislative authority. In modern legal systems, regulations have authority when they rationally and nonarbitrarily implement delegated power within the means permitted. Based on that account of authority, the object of regulatory interpretation is the purpose the regulation seek to implement, discerned using the regulation’s text and accompanying explanation of its purpose, and constrained by systemic legal norms.

Kevin M Stack is Lee S. & Charles A Speir Professor of Law at Vanderbilt University Law School. He writes on administrative law, regulation, statutory interpretation, separation of powers, and legal theory. He was recognized with the American Bar Association’s 2013 Annual Scholarship Award for the best published work in administrative law for his Michigan Law Review article, “Interpreting Regulations.” He is co-author (with Lisa S. Bressman and Edward L. Rubin) of The Regulatory State (Second Edition 2013), a casebook on statutes and administrative lawmaking.

His work has appeared in numerous journals, including the Yale Law Journal, Columbia Law Review, Michigan Law Review, Cornell Law Review, Northwestern University Law Review, George Washington Law Review, the University of Toronto Law Journal, and the Journal of Common Market Studies. He joined Vanderbilt’s law faculty in 2007 and served as associate dean for research from 2008 to 2010 and again from 2012 to 2015. Before earning his JD at Yale Law School, he earned a master’s degree in philosophy at Oxford University, supported by a Fulbright Scholarship, and a BA from Brown University.

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Phillipa Weeks Staff Library

ANU College of Law

5 Fellows Road

The Australian National University, Acton 2600

Australia

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