Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, the theoretical literature contains no study of regulatory examples or of how they might be interpreted. Courts differ about whether examples serve as an independent source of law. There is uncertainty about the proper role of this frequently used regulatory tool.
In this Article, we argue that regulatory examples make law. Our claim is that, as a default rule, the legal content offered by regulatory examples is coequal with, not subordinate to, the non-example portions of regulations. Treating examples as co-equal with other portions of the regulations empowers agencies to improve regulatory content through concrete communication, while also acknowledging regulated parties' natural inclination to treat such communications as law. We reject counterarguments that regulatory examples merit extra scrutiny, or less respect, that would relegate them to second-class status.
We also set forth a method for interpreting regulatory examples. We argue that they are best understood through analogical, or common law, reasoning, and we illustrate this approach. We show how analogical reasoning can be reconciled with the rest of the broader regulatory and statutory scheme using various interpretive approaches, such as textualism or purposivism. Our method places regulatory examples in dialogue with their broader regulatory and statutory schemes. It both empowers and constrains courts, agencies, and regulated parties in their efforts to understand the meaning of regulations.
Susan C. Morse and Leigh Osofsky, Regulating by Example, 35 Yale J. on Reg. 127 (2018).