The Supreme Court's New Implied Repeal Doctrine: Expanding Judicial Power to Rewrite Legislation Under the Ballooning Conception of 'Plain Repugnancy'
This article presents a historical, public policy and analytical critique of the United States Supreme Court's revision of the implied repeal doctrine in Credit Suisse Securities (USA) LLC v. Billing, 551 U.S. 264, 127 S. Ct. 2383 (2007). The article takes a historical perspective to demonstrate the sound public policy rationale for the more traditional approach to this canon of statutory interpretation. The article analyzes the decision against the backdrop of more than 400 years of English and American courts traditional application of this doctrine to avoid judicial intrusion into the legislative prerogative. It is argued that the Court's revision of the implied repeal doctrine ignores the long and steady history of the doctrine; that the Court's new approach is bad law and bad policy; and that the Court should move to restore the traditional doctrine fully and clearly.
Interpreting Statutes in the Regulatory State
Discussing the judge's role in interpreting statutes, Justice Holmes wrote that "if my fellow citizens want to go to Hell I will help them. It's my job."' Critics of the view of the courts as passive agents of the legislature claim that it understates the difficulty of interpretation, the indeterminacy of both the language and the will of the citizens, and the resulting discretion of the judge. Similarly, a vigorous debate continues over the proper role of the traditional sources of statutory interpretation ― the text, the legislative history, the purpose of the enacting Congress, and the structure of the statute. Professor Sunstein suggests that both the conventional understandings of interpretation and the recent critiques are seriously flawed. Because interpretation inevitably involves the application of "background norms" ― often controversial, value-laden, and not found in any text ― the traditional theories are incomplete. These theories, however, properly stress the democratic primacy of Congress. When congressional instructions are clear and do not create absurdity, courts should follow them. Often, however, the instructions are ambiguous, and judges must choose from a number of possible background norms. 
Suggesting that many disputes over statutory meaning are in fact disagreements over appropriate background norms, Professor Sunstein contends that the debate should center on whether the proposed norms express a good understanding of constitutional values; are properly responsive to contemporary institutional arrangements involving the making, monitoring, and enforcement of law; and are sensitive to the aspirations and functions as well as the shortcomings of regulatory statutes. Professor Sunstein concludes by outlining a series of norms ― some based on current interpretive practices, others reflecting his own normative vision. All the norms are designed to focus disputes over statutory meaning more sharply on the underlying issues and to deepen understanding of the regulatory state.
An analysis of the de minimis strategy for risk management.
A de minimis risk management strategy sets a threshold so that risks below the specified level are defined as trivial and exempted from further consideration. The intended purpose is to help avoid inappropriate and wasteful concern with insignificant low-level risks. In most instances a de minimis strategy is likely to have beneficial or innocuous effects, but under certain circumstances large differences may develop between nominal and actual de minimis levels. The potential for such discrepancies illustrates why de minimis (and all other risk management) strategies should be evaluated on the basis of the portfolio of risks that would accumulate from applying such strategies over time, rather than on the apparent reasonableness of any single instance of application.