Abstract
Response to Deborah Eisenberg, Regulation by Amicus
Professor Deborah Eisenberg has produced a fine and important work, Regulation by Amicus, which assesses U.S. Department of Labor (DOL) efforts to influence statutory interpretation and effectuate public policy through the use of friend of the court briefs in private litigation. Most notably, she focuses on the unconventional deployment of this strategy by the two most recent presidential administrations in the service of their interpretations of the Fair Labor Standards Act (FLSA), the federal statute governing wage and hour law. Through the often aggressive submission of amicus curiae briefs, the administration of George W. Bush aimed to use the Supreme Court’s agency deference doctrine to eviscerate worker protections,while Barack Obama’s administration has employed the same tool to revive and expand interpretations protective of employees.
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