Justice Breyer's Democratic Pragmatism

Abstract

Abstract

Chevronizing Foreign Relations Law

“…If a relevant interpretation exists, the comity doctrines are trumped, because they should not be taken to operate as constraints on the executive under Chevron Step One. If the interpretation is unreasonable, of course, it will be invalid under Step Two; but Step Two invalidations are rare in the domestic sphere, 111 and they should be rare here as well. If there is no 107 See, e.g., Young v. Community Nutrition Institute, 476 US 974 (1986) (applying deference principles to Food and Drug Act).…”

“…110 See infra. 111 interpretation of a statutory term, but simply a policy judgment by the executive, the courts should defer as well, using Chevron as an analogy. The Avoidance Canon provides an important exception, and there are others; but the comity doctrines do not belong in the same category as that canon or other exceptions.…”

If People Would Be Outraged by Their Rulings, Should Judges Care?

“…117 But some statutes, especially at the state level, may reflect judgments of fact or morality that are inconsistent with the views of the public at large. If this is so, and if the Court can reliably measure 111 Id. 112 Id.…”

Can the Income Tax Be Saved?: The Promise and Pitfalls of Unitary Formulary Apportionment

“…110 It would be hard to draft a rule that swept into the net amounts paid for "leased employees" and not legal fees paid to an outside law firm. 111 Then again, perhaps no distinction should be made since a company has the option of maintaining an in-house legal department; its decision not to do so, or to maintain a smaller one, might be affected by tax considerations.…”

“…When related parties are involved at both ends of the contract, even the normal return may be at issue. 111 Canada includes "fees paid to another person for services that would normally be performed by employees of the corporation" in the payroll factor. Id.…”