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Cass R. Sunstein, Justice Scalia’s Democratic Formalism, 107 Yale L.J. 529 (1998)(reviewing Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997)).

Abstract: This review-essay, dealing with Justice Scalia's new book, A Matter of Interpretation, argues that Scalia's approach to interpretation has large gaps: administrative law and the administrative state. Scalia's essay attempts to exorcise the spirit of common law courts in favor of an approach to interpretation that might be described as democratic formalism. But in the modern era, most of interpretation, de jure perhaps and certainly de facto, is carried out not by courts but by administrative agencies. In a post-Chevron era, agencies in fact perform, and might well be authorized to perform, the updating and particularizing role historically performed by common law courts. Textualism, as Justice Scalia understands it, has some advantages as compared to statutory inter pretation by judges that allows changes in meaning over time; but it has hardly any advantages as compared to common law made by technically expert and democratically accountable agencies. The essay discusses how the American legal system might be reconceived if administrative agencies are seen as our common law courts.