Draft Article on Interpretive Regulations and Chevron Deference (8/31/21)

About two years ago, I posted on SSRN here an article titled The Report of the Death of the Interpretive Regulation Is an Exaggeration.  I posted one revision in August 2020.  I am now on my second and last revision.  I have substantially revised the content, for, I think, the better.  Before posting that new revision, however, I solicit and would welcome comments on the article from those willing to undertake the adventure.  Any reader willing to do so should please email me at jack@tjtaxlaw.com for a pdf version of the draft article.  (The pdf version has links to help get around the pdf document (cross-references, etc.) and even to certain key documents on the web (such as the Attorney General’s Manual on the APA in 1947)).

The subject matter generally is Professor Kristin Hickman’s claim that APA category of interpretive tax regulations no longer exists.  The relevant APA categories are legislative or interpretive.  Professor Hickman's claim is that all tax notice and comment regulations are legislative rather than interpretive.  Since tax is not exceptional, that claim means that interpretive regulations no longer exist in the APA universe outside tax.  The article contests Professor Hickman’s claim.  The article deals with general administrative law and APA concepts but focuses on the tax setting for regulations that have traditionally been considered interpretive.  The article deals also with Chevron deference.

The article is 113 pages (excluding opening pages and table of contents) with 457 footnotes.  (The devil is in the footnotes, so to speak.)  I attach a copy of the cover page and table of contents here to offer an idea of the scope of the article.

Of course, any help that is offered will be acknowledged with the permission of the commenter.

Finally, for what it is worth, I did the MS Word reading ease check to test my draft article against some others (arbitrarily chosen).  Here are the results I got:

	Fleisch	Fleisch-Kincaid	Passive
	Reading Ease	Grade Level	Sentences (%)
Chevron (the case)	28.4	15.1	19.1%
Hickman & Nielson (excerpts)	20.2	18.4	7.6%
Sunstein (article)	34.1	13.7	11.7%
Verkuil (article)	28	15.6	17.0%
Townsend (article)	24.3	15	18.4%
This blog entry	50.2	8.6	5.0%

Microsoft explains these tests here.  My article is not the best nor the worst.  Setting aside this blog entry, Sunstein’s was the best as I relate the various metrics.