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03/26/2018

Brian Slocum: Replacing the Flawed Chevron Standard
Michael Ramsey

Brian G. Slocum (University of the Pacific - McGeorge School of Law) has posted Replacing the Flawed Chevron Standard (William & Mary Law Review, Vol. 60, 2018) on SSRN.  Here is the abstract:

Judicial review of agency statutory interpretations depends heavily on the linguistic concept of ambiguity. Under Chevron, judicial deference to an agency’s interpretation hinges on whether the court determines the statute to be ambiguous. Despite its importance, the ambiguity concept has been poorly developed by courts and deviates in important respects from how linguists approach ambiguity. For instance, courts conflate ambiguity identification and disambiguation and treat ambiguity as an umbrella concept that encompasses distinct forms of linguistic indeterminacy such as vagueness and generality. The resulting ambiguity standard is unpredictable and does not adequately perform its function of mediating between judicial interpretive autonomy and deference to agency interpretations.

This article offers a novel alternative to the problematic ambiguity concept. Rather than a binary choice between clarity and ambiguity, different types of linguistic issues should call for different judicial treatment. Instead of the ambiguity trigger for deference, courts should presume that certain categories of issues are judicially resolvable while other categories are for the agency to resolve. The categories proposed in this article reflect the traditional view that courts are experts at statutory interpretation (which includes determining congressional intent), and agencies are experts at policymaking (which includes exercising delegated discretion). The categories thus provide a framework for the allocation of interpretive authority between courts and agencies on the basis of their respective areas of expertise. Furthermore, the proposed framework offers a better account of significant cases, such as the infamous King v. Burwell case where the Court refused to defer to the agency’s interpretation, than does the Court’s own explanations.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the week").