Must regulatory agencies be formalistic?

Abstract

The article investigates the reasons why regulatory agencies may choose between being a formalist interpreter or not. It is intended to show the need to abandon purely conceptual or fundamentalist positions regarding the theory of legal interpretation. The methodology employed is a theoretical comparison between Frederick Schauer's justification of legal formalism, Cass R. Sunstein's proposal for a greater role for empirical issues in discussions about legal formalism, and Adrian Vermeule's adhesions and objections to this proposal. The qualified position of regulatory agencies as interpreters of the law is discussed, based on certain institutional characteristics, such as democratic legitimation, technical expertise, and decision-making procedures. The article concludes that the choice between a more or less formalist posture derives from circumstantial and empirical factors, in connection with the search for the best performance of institutions.