Regulating by Example Susie Morse Leigh Osofsky Regulatory
Regulating by Example Susie Morse & Leigh Osofsky
Regulatory Examples • Definition: a portion of a regulation that applies the law to hypothetical facts (often preceded by “for example, ” “such as, ” “for instance”). • E. g. : Examples in new proposed management fee waiver regs • Bulk of regs = examples that go to whether, based on facts of example, there is “significant entrepreneurial risk” (superfactor from nonexample portion of regs, but elaborated here)
Nature of Examples • Different Impetuses (paradigm case, motivating facts, easier to explain) • Different Functions: Illustrative vs. Declaratory • Declaratory Require Theory of Interpretation
Our Theory of Interpretation Step 1: Analogical Case-Law Reasoning to Understand Legal Content of Examples Step 2: Reconcile Content with Rest of Regulatory and Statutory Scheme Using Background Interpretive Approach Then, apply legal content from above to future fact patterns as would apply prior case precedent to future cases.
More on Our Theory of Interpretation • Why Analogical Reasoning? • Shared Logical Underpinnings with Case Law • Why Reconciliation with Broader Regulatory and Statutory Scheme? • How Reconciliation with Broader Regulatory and Statutory Scheme?
Application: Diseases on Airplanes • Non-Example portion of the Regulation: - Airline may deny or limit transportation if passenger poses “direct threat” - To determine direct threat: Consider seriousness of communicable disease and “degree to which it can be readily transmitted by casual contact” Question: What does “consider” these two factors mean? Is one enough? How to determine?
Regulatory Examples • Example 1: Common cold not serious, though readily transmissible. No direct threat. • Example 2: AIDS serious, but not readily transmissible on airplane. No direct threat. • Example 3: SARS serious, and “may be” readily transmissible. “Probably” a direct threat.
Step 1: Applying Analogical Reasoning • Both factors NECESSARY to pose “direct threat” • Question: Are both factors SUFFICIENT to pose direct threat? • Answer: Not clear
Step 2: Reconciling with Broader Regulatory and Statutory Scheme • Statute: Anti-Discrimination Statute • Rest of Regulatory Scheme (Non-Example Text): Individualized Approach • Preamble to Reg: Generalized Rule
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