The Importance of Being Ambiguous: Substantive Canons, Stare Decisis and the Central Role of Ambiguity Determinations in the Administrative State

89 Pages Posted: 18 Sep 2009 Last revised: 18 Jun 2010

Brian G. Slocum

University of the Pacific - McGeorge School of Law

Abstract

The concept of ambiguity plays an underappreciated and undertheorized role in the judicial review of agency statutory interpretations. Its importance is difficult to exaggerate. Ambiguity functions as the determiner of whether an agency’s statutory interpretation will receive deference, as well as 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. As well, the prominence of ambiguity has caused many commentators and courts to proclaim a bright line distinction between interpretive tools that help evaluate statutory clarity and those that resolve statutory uncertainty. Although linguists would agree that ambiguity is unexceptional in normative legal texts due to its ubiquity, the judiciary, which has created a highly idiosyncratic definition, is far more selective about declaring language to be ambiguous. The judiciary’s selectivity regarding ambiguity is driven by its conflation of ambiguity identification with ambiguity resolution, which allows courts to arbitrarily determine the context for resolving statutory meaning through the discretionary selection of judicially created, but untested, interpretive tools.

This Article addresses the concept of ambiguity from a linguistic perspective and argues that the Supreme Court’s Chevron doctrine has fostered an unfortunate emphasis on ambiguity. Instead of Chevron’s misguided elevation of the explicit ambiguity determination, judicial review should focus on other considerations. Such a commitment would mean the end of the bifurcated review process that distinguishes between ambiguity identification and ambiguity resolution. It would also allow for the consideration of substantive canons of statutory construction equally in agency and non-agency cases. Finally, it would view Chevron’s contribution to statutory interpretation as a softening of the strict stare decisis standard that would no longer depend on a previous explicit ambiguity determination.

Suggested Citation

Slocum, Brian G., The Importance of Being Ambiguous: Substantive Canons, Stare Decisis and the Central Role of Ambiguity Determinations in the Administrative State. Maryland Law Review, Vol. 69, 2010; Pacific McGeorge School of Law Research Paper No. 10-07. Available at SSRN: https://ssrn.com/abstract=1473998

Brian G. Slocum (Contact Author)

University of the Pacific - McGeorge School of Law ( email )

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Sacramento, CA 95817
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