In Procedures as Politics in Administrative Law, I aim to connect the insights of legal scholars and positive political theory (PPT) scholars about the purpose of administrative procedures. For some time now, legal scholars and PPT scholars have maintained parallel but largely independent discussions of this subject. According to legal scholars, administrative procedures serve due process or rule-of-law values and often run at odds with political values, including accountability and efficiency. Because administrative law has vacillated over time between procedures and politics, it seems to contain significant tensions. For example, agencies must confront the prospect of judicial scrutiny but are due judicial deference for their decisions. Agencies must choose procedures that command the force of law, but have a choice among procedures. Agencies must answer for their failures to enforce the law but may choose whether to enforce the law. Within this framework, legal scholars have divided themselves into two camps: those who favor procedure, and those who favor politics.

The first line of Kristin Hickman and Matthew Krueger’s article announcing that “Skidmore deference is back” brings to my mind those awful horror villains of the 1980s—like Jason from the Friday the 13th movies or Chucky from the Child’s Play series—who repeatedly returned to terrorize. The fact that the revival of Skidmore triggers the memory of these bloodthirsty and unstoppable-against-all-odds villains will be no surprise to most administrative law practitioners and scholars (not to mention law students). Like Jason and Chucky, Skidmore is not just scary; it is a very messy business.

Skidmore deference—the standard of judicial review of agency legal interpretations articulated in Skidmore v. Swift & Co.—is an old doctrine. The Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. arguably rendered Skidmore irrelevant; but more recent Court pronouncements in Christensen v. Harris County and United States v. Mead Corp. resurrected Skidmore deference as an alternative to Chevron. Since Christensen and Mead, Skidmore has reemerged as a unique and frequently used standard of review. Yet while reams of scholarly articles evaluate Chevron and Mead, contemporary scholarship offers comparatively little analysis of Skidmore as a doctrine.

In Constitutional Avoidance in the Executive Branch, I argue that deciding whether executive branch actors should employ any given judicially-developed rule of statutory construction requires considering both the theory underlying the rule and the context in which it will be deployed. I apply those considerations to the executive’s use of the canon of constitutional avoidance, which provides that where an otherwise acceptable construction of a statute would raise serious constitutional problems, the statute should be construed to avoid such problems unless such a construction is plainly contrary to the intent of Congress. I identify two different theoretical accounts of the avoidance canon in the article, and here I want to focus on an important implication of one of those accounts.

Editor's Note: In The Uselessness of Public Use, Professors Abraham Bell and Gideon Parchomovsky argue that criticisms of the Supreme Court's landmark eminent domain decision in Kelo v. City of New London are “ill-conceived and misguided.” The authors claim that “eminent domain is the government power least pernicious to property owners because it is the only one that guarantees them compensation.” In the essay below, Michael Cardozo, Corporation Counsel for the City of New York, responds to Bell & Parchomovsky's analysis.

In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for legal methods, such as tax strategies, in addition to traditional inventions such as Tylenol or the telephone. Commentators—including the Commissioner of Internal Revenue, the General Counsel of the Patent Office, and the Chair of the ABA Intellectual Property Law Section—have accepted the Patent Office’s power to grant legal method patents (as a type of business method, which were ruled patentable by the federal courts in 1998), but at the same time have criticized this new type of patent on policy grounds.