Document Type
Article
Publication Date
2016
Rights
Abstract
When an administrative agency’s interpretation of an ambiguous statutory term is challenged in court, the Chevron doctrine instructs judges to evaluate whether it is reasonable. But how does a court know reasonableness when it sees it? Here, I first show that reasonableness review is more complex than it might seem. Contrary to common images, for instance, courts do not determine a range of reasonable interpretations; and that is a good thing, because they are not competent to do so. Moreover, because traditional statutory interpretation approaches presume the existence of one correct meaning for a given word, they are not well suited to multivalent terms. But the Chevron doctrine assumes that multivalence permeates regulatory statutes. So reasonableness review is both complicated and undertheorized.
I suggest that reasonableness review lacks a standard in part because the doctrine misapprehends how meaning is constructed, treating all meanings as arising in the same way. Decades of research on communicative practices (which this article is the first to use in this context) show that this is wrong: different kinds of terms gain meaning in different ways. In the context of regulatory statutes, it is helpful to see statutory terms as falling on a continuum: from more law-based language, whose meaning rests on legal texts, to more world-based language, which depends on understandings that are exogenous to legal process. Recognizing that language falls along this spectrum should push courts to differentiate the kind of deference they give agency interpretations, making world-based legal terms presumptively ambiguous and thus focusing attention away from Chevron’s first step to its second.
Further, reasonableness review tends to assume that agencies always act to the full extent of their potential competence. I distinguish the structural abilities an agency has from the extent to which it has utilized those abilities in a given case. Recognizing that this distinction pervades agency practice should push reviewing courts away from the substance of an agency’s interpretation to focus on its interpretive process. This shift would play to courts’ strengths and help cohere statutory interpretation review with arbitrary and capricious review, while maintaining the unique characteristics of each.
Publication Title
Yale Journal on Regulation
First Page
1
Last Page
53
Recommended Citation
Anya Bernstein,
Differentiating Deference,
33
Yale J. on Reg.
1
(2016).
Available at:
https://digitalcommons.law.buffalo.edu/journal_articles/57