Kathryn E. Kovacs (Rutgers School of Law – Camden) has posted Superstatute Theory and Administrative Common Law on SSRN. Here is the abstract:
This article employs William Eskridge and John Ferejohn’s theory of superstatutes 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.” The APA is a paradigm superstatute. Eskridge and Ferejohn posit that superstatutes should be interpreted to evolve, even beyond Congress’s original intent. That assertion, however, is grounded on the assumption that a particular agency is at the center of a deliberative feedback loop including Congress, the President, the public, and the courts; they did not address superstatutes like the APA that are not implemented by a single agency. Importing superstatute theory into this new statutory context yields a surprising result. In the APA’s case, respecting and encouraging the civic-republican style of deliberation that Eskridge and Ferejohn espouse requires courts to adhere more closely to the compromises encoded in the statute’s text and 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 congressional intent should be presumed to be illegitimate.
This very interesitng piece is highly recommended.