April 19, 2009
In The Importance of Being Ambiguous: Substantive Canons, Stare Decisis and the Central Role of Ambiguity Determinations in the Administrative State (the final version will appear in Volume 69 of the Maryland Law Review), Professor Brian Slocum brings linguistic expertise to his analysis of the central role of ambiguity in the judicial review of federal administrative agencies’ statutory interpretations. Under prevailing law, derived from Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), ambiguity functions as the determiner of both whether an agency’s statutory interpretation will receive deference and whether the stare decisis standard for statutory interpretation cases will apply instead of the recent principle that agencies can freely change their interpretations even in the face of a previous conflicting judicial interpretation. The judicial emphasis on ambiguity has created unfortunate methodological consequences, such as a perceived bright line distinction between interpretive tools that help evaluate statutory clarity and those that resolve statutory uncertainty.
Professor Slocum demonstrates how this doctrinal emphasis on ambiguity is unfortunate. He argues that instead of relying on explicit determinations of ambiguity, judicial review should focus on other considerations. The shift would avoid the artificial bifurcated review process that distinguishes between ambiguity identification and ambiguity resolution. It would also avoid the artificial distinction between interpretive rules that estimate congressional intent and those that are based on policy, thus legitimating judicial consideration of substantive canons of statutory construction. He ultimately advocates a streamlined interpretive process that considers agency views yet also bounds the limits of agency interpretive freedom.