Extremity As A Strategy In Appellate Arguments

My fixation on King v. Burwell continues unabated. Recall that the issue in this statutory construction case is whether the text of the Affordable Care Act only permits the federal government to subsidize qualified individuals (by income) who purchase insurance on state-operated exchanges, or whether subsidies are also available to all qualified individuals, regardless of whether they purchase insurance through a state-operated exchange or the federal exchange, www.healthcare.gov.

The question on my mind today concerns the efficacy of a strategy that the defenders, the Solicitor General in particular, appear to have adopted in their appellate briefs: leading with a relatively weaker argument followed by a relatively stronger backup argument.  

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Interpreting Administrative Regulations–Part Two

In Part One of my two-part series on interpreting administrative regulations, I discussed my disagreement with the Connecticut Supreme Court’s position, set forth in Sarrazin v. Coastal, Inc., that General Statutes section 1-2z applies to administrative regulations–given that the plain language of 1-2z refers only to “statutes.”  In this post I discuss my disagreement with the Court’s position that an administrative agency’s interpretation of its own regulation is not entitled to any deference unless it is “time-tested, reasonable or the result of formal rule-making procedures.”

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