Morse & Osofsky: Regulating By Example

Susan C. Morse (Texas) & Leigh Osofsky (Miami), Regulating by Example,  35 Yale J. on Reg. ___ (2017):

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, neither the legal nor theoretical literature contains any study of regulatory examples or explains how they might be interpreted. This Article fills this gap.

In this Article, we explore regulatory examples and set forth a theory for how to interpret them. We examine how regulatory examples, like common law cases, serve as data points that help communicate legal content. We argue that regulatory examples are best understood through analogical, or common law, reasoning, and illustrate this through a variety of examples.

Since regulatory examples are part of a broader regulatory and statutory scheme, the legal content of examples must also be reconciled with the rest of that law. We show how this reconciliation can be done through a variety of background interpretive approaches such as textualism or purposivism, and we argue for a default rule that treats the legal content in regulatory examples as co-equal with the non-example portion of the regulation. By acknowledging and exploring how regulatory examples communicate law, our theory places regulatory examples in dialogue with their broader regulatory and statutory schemes. This both empowers and constrains courts, agencies, and regulated parties in their efforts to understand the meaning of regulations.