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The Interpretive Voice

Ellen P. Aprill

Loyola Law School Los Angeles

Loyola-LA Legal Studies Paper No. 2005-3

In our modern administrative state, Congress writes federal statutes and the other two branches of government share responsibility for interpreting them. Under Chevron v. Natural Resources Defense Council, 467 U.S. 837 (1984), sometimes courts are assigned primary interpretive authority; at other times, that task falls to the executive branch in the form of an administrative agency. The different institutional capacities and different roles of these interpreters in our constitutional system produce very different points of view and thus very different interpretive voices. This article, using the metaphor of the interpretive voice and examples from tax law, argues that United States v. Mead Corp., 533 U.S. 218 (2001), while it purports to clarify Chevron, in fact moves away from the principles underpinning Chevron.

Mead expands the judicial interpretive voice. It does nothing to limit the reach of Chevron Step One, where the judicial voice dominates. It cuts back on Chevron Step Two, the domain of the administrative voice. Mead accords Skidmore v. Swift, 323 U.S. 134 (1944), a newly important role, and the key factors of Skidmore - expertise, consistency, and valid reasoning - put particular pressure on administrative agencies to imitate the judicial interpretive voice. The factor of expertise, which triggers Skidmore deference, may seem to favor administrative agencies, but such is not necessarily the case when a specialized court, such as the Tax Court, is involved in statutory interpretation and can itself supply the necessary expertise. The factor of consistency imposes a kind of administrative stare decisis. The factor regarding the validity of an agency's reasoning gives insufficient weight to the ways in which an administrative agency is like a legislature rather than a court.

The article concludes that courts, like most of us, are most comfortable when they hear their own accents. Indeed, the administrative interpretive voice may be so different from the judicial one that each has difficulty in understanding the subtleties of the other. Administrative agencies need to amplify or translate such peculiarly administrative concerns, such as administrability of a particular statutory interpretation or an interpretation's impact on the statutory scheme as a whole, in order to make such concerns more salient to courts.

Number of Pages in PDF File: 51

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Date posted: February 11, 2005  

Suggested Citation

Aprill, Ellen P., The Interpretive Voice. Loyola-LA Legal Studies Paper No. 2005-3. Available at SSRN: http://ssrn.com/abstract=665829

Contact Information

Ellen P. Aprill (Contact Author)
Loyola Law School Los Angeles ( email )
919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1157 (Phone)
213-380-3769 (Fax)
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