Provisional Precedent: Protecting Flexibility in Administrative Policymaking

51 Pages Posted: 20 Dec 2002

See all articles by Kenneth A. Bamberger

Kenneth A. Bamberger

University of California, Berkeley - School of Law


Under the rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. This Article argues that the Supreme Court's adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-of-powers justifications for agency administration and jeopardizes effective policymaking. It illustrates how the Supreme Court's decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges' enhanced ability to commandeer agency discretion, the Article proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own.

Keywords: Administrative law, deference, statutory interpretation, stare decisis, precedent

JEL Classification: H1, K2, K3, K4

Suggested Citation

Bamberger, Kenneth A., Provisional Precedent: Protecting Flexibility in Administrative Policymaking. New York University Law Review, Vol. 77, p. 1272, 2002. Available at SSRN: or

Kenneth A. Bamberger (Contact Author)

University of California, Berkeley - School of Law ( email )

Boalt Hall NA446
Berkeley, CA 94720-7200
United States
(510) 643-6218 (Phone)


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