August 08, 2011
Proxy Access, by Jay Verret
Posted by David Zaring

Over at Truth on the Market, Jay Verret has begun an effort on open source writing, with the DC Circuit's proxy access decision as the subject.  Give it a look and weigh in, if you have a view - he's correct to think that statutory interpretation of the relevant statutes isn't a particularly clarity inducing exercise; one interesting question is whether the SEC has done that clarification by regularly interpreting the statute in a particular way.  Doesn't mean the agency couldn't change the interpretation - that's what Chevron was about, after all (the subject of the Chevron case was polar opposite interpretations of the same Clean Air Act term by the Carter and Reagan EPAs).  But I think it can do some work where pure textualism results in the conclusion that yes, indeed, the statute is ambiguous.  If you stop the analysis there, I think it would be very difficult not to simply defer to the agency.

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