Copyright (c) 2006 The Yale Law Journal Company
The Pocket Part
Article: The Virtues of Simplicity
September 26, 2006
The Pocket Part
116 Yale L.J. Pocket Part 70
CASS R. SUNSTEIN
I. AGREEMENTS AND CONCERNS
Simplicity has vices as well as virtues. If the law consists of simple rules, it may badly misfire as compared with a more flexible, less rule-bound approach. But in many areas, simple rules are best. When courts are setting out doctrines to govern scope of review of executive action, they usually do well to favor simplicity. Complexity can have unfortunate systemic effects, and those effects cannot easily be justified by the effort to ensure greater accuracy. A clear formula, informing courts and litigants about the proper approach, reduces the risk of interminable debates over threshold issues. Sophisticated multifactor tests might well disserve the legal system, simply because they create undue complexity. 1
Peter Strauss is wise as well as learned, and it is unwise and hazardous to disagree with him; I am most grateful for his generous and illuminating remarks on the question of judicial deference to executive interpretations of law. If we disagree about the answer to that question, it is largely because I give greater emphasis to the virtues of simplicity and seek a simple framework with which to approach the deference question. But let us begin with some common ground.
Professor Strauss and I both approve of the Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. 2 We agree that the Court's analysis in that case depended on a judgment that Congress had assigned, or delegated, law-interpreting power to the Environmental Protection Agency (EPA). We also agree ...
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