Judicial Deference to Inconsistent Agency Statutory Interpretations

35 Pages Posted: 23 May 2009 Last revised: 23 Jan 2015

See all articles by Yehonatan Givati

Yehonatan Givati

Hebrew University of Jerusalem - Faculty of Law

Matthew Stephenson

Harvard Law School; Institute for Corruption Studies

Date Written: April 1, 2009

Abstract

Although administrative law doctrine requires courts to defer to an agency's reasonable statutory interpretation, the doctrine is unclear as to whether an agency gets less deference when it changes its own prior interpretation. We formally analyze how judicial deference to revised agency interpretations affects those interpretations' ideological content. We find a non-monotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism. This arises because as courts become less deferential to revised interpretations, the initial agency finds a moderate interpretation that will not be revised more appealing. Normatively, our results suggest that an interest in responsiveness of interpretive policy to the preferences of the incumbent leadership favors deference to revised interpretations, while an interest in ideological moderation favors a somewhat less deferential posture to interpretive revisions.

JEL Classification: D02, D73, D78, K23

Suggested Citation

Givati, Yehonatan and Stephenson, Matthew Caleb, Judicial Deference to Inconsistent Agency Statutory Interpretations (April 1, 2009). Journal of Legal Studies, Vol. 40, No. 1, 2011, Harvard Law and Economics Discussion Paper No. 634, Available at SSRN: https://ssrn.com/abstract=1408746 or http://dx.doi.org/10.2139/ssrn.1408746

Yehonatan Givati (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Jerusalem
Mount Scopus, 91905
Israel

Matthew Caleb Stephenson

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-9863 (Phone)

Institute for Corruption Studies

Stevenson Hall 425
Normal, IL 61790-4200
United States

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