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Expanding Chevron's Domain: A Comparative Institutional Analysis of the Relative Competence of Courts and Agencies to Interpret Statutes, 2013 Wisconsin Law Review 411 (2013)


Professor Neil K. Komesar has championed the notion that the

creation and application of legal rules should generally consider the

comparative institutional competence of different rule makers. To be

sure, earlier judges (like Louis Brandeis and Felix Frankfurter) and

scholars (like Willard Hurst and Henry Hart) anticipated the broad

contours of Komesar’s comparative institutional analysis,1 but none

engaged in this kind of analysis with the analytical rigor that Komesar

has accomplished.

In a series of legal classics, Professor Komesar makes the following

claim: judges ought to be reluctant to develop aggressive doctrines to

solve problems that other institutions (especially the market and

legislatures) are handling satisfactorily, and should be particularly loathe

to trump market or legislative rules when the judiciary is not competent

to administer such doctrine effectively and with acceptable costs. As an

economist would put it, the first prong of this analysis involves the

“demand” function for judicial doctrine, and the second prong involves

the “supply” function.

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