Selected Publications

Congressional Capacity and Major Questions (in progress, job market paper)

Abstract: Defenders of the Major Questions Doctrine have recently claimed that the MQD benefits Congress even as it requires Congress to go to substantial time and effort to amend its statues which delegate power to agencies. Congress, however, has limited capacity with which it can pursue its aims, and amending statutes in response to the Court’s decisions eats into this limited capacity. This Article both develops an account of where limits on legislative capacity fit within statutory interpretation and argues that defenders of the MQD fail to consider the impact of the doctrine on that capacity, which in turn undermines their claims to benefits Congress.

Congressional capacity is multifaceted and includes physical and human capital, workable legislative coalitions, and legislative time. Time is especially important because there are always more problems worthy of legislation and legislative bargains to be struck than there is time to go around. Congress is always in a rush. Legislative time thus forms a part of the institutional context about Congress that textualist and purposivist theorists alike agree is relevant to statutory interpretation. The MQD is often called a clarity tax, and that tax must be paid in the currency of legislative time.

Even so, members of the Court have ignored the impact of the MQD on congressional capacity, lumping it in with policy considerations that judges believe they can ignore. But congressional capacity, and the scarcity of legislative time in particular, are structural features of Article I that statutory interpreters focused on ascertaining the will of Congress must consider. And the impact of the MQD on congressional capacity undermines the case that the doctrine benefits Congress. Congressional capacity is a scarce and valuable resource, and doctrines which tax that capacity will usually harm rather than help Congress.

Obligations to Consider, 64 Harvard Journal on Legislation (Forthcoming 2027)

Abstract: The law is full of rules that regulate what sources legal officials consider when making a hard legal decision. This Article examines one variety of these evidence rules—“obligations to consider“—which require a decisionmaker consider a piece of evidence that they could otherwise exclude from the interpretive calculus altogether. These inclusionary evidence rules are positive law and constrain decisionmakers by prohibiting them from ignoring a specific source of legal evidence.

 Obligations to consider are endemic to our law, appearing both in specific doctrinal areas like administrative law and trans-substantively in the law of statutory interpretation. These rules produce consistent and desirable effects: they pluralize legal interpretation by introducing the views of non-judges into the picture, tend to produce narrower decisions, protect desirable normative values, and may be enforced against subordinate decisionmakers at lower cost than decision rules.

 Many legal practices which are difficult to explain as decisional rules are best understood as obligations to consider. In three case studies, I show that Skidmore deference, enacted statutory findings and purposes, and the practice of designating sources as “persuasive authority” are all best understood as obligations to consider. In each case, obligations to consider best explain the evidence and shed light on the status of these contested features of our legal system.

 Describing the structure of obligations to consider supplies leverage on three issues. Descriptively, it enhances our understanding of effects of common inclusionary evidence rules like the requirement that agencies respond to relevant comments. Normatively, it reveals where obligations to consider are most effective. Conceptually, it clarifies ongoing debate about the status of practices like Skidmore deference.

The New Standing Doctrine, Judicial Federalism, and the Problem of Forumless Claims, 134 Yale Law Journal 1008 (2025) (with Adam Flaherty)

Abstract: The standing doctrine articulated by the Supreme Court in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez bars “inconcrete” statutory-damages claims from federal courts. As state courts also restrict their own standing doctrines, they leave valid federal claims without a forum. This problem of forumless claims leaves litigants without redress, frustrates Congress’s legitimate efforts to regulate, and creates tensions in principles of federalism. We argue that the Supremacy Clause requires state courts to hear these claims, and we propose a test for when they must do so that accounts for other doctrinal developments. State courts cannot use state standing rules to leave valid federal claims forumless.