79 Pages Posted: 6 Jun 2006
In its recent decision in National Cable & Telecommunications Association v. Brand X Internet Services, the Supreme Court held that a court's independent construction of ambiguity in an agency-administered statute is not authoritative - even when rendered in the absence of binding agency views. Rather, judicial constructions of ambiguous statutory terms can be overridden by Chevron-eligible agencies. Although Brand X appears to resolve a longstanding battle between Chevron and stare decisis by transferring significant interpretive authority from courts to agencies, the Court's decision raises many new questions. This Article focuses on one prominent question raised by Brand X: now that federal courts know that their independent constructions of regulatory statutes may amount to nothing more than an interim construction that can be cast aside by the relevant agency, should courts avoid issuing their own independent judicial interpretations in the first place? In answering this question, this Article draws on the federal courts' experience in the federalism context in the wake of the Court's landmark decision in Erie Railroad Company v. Tompkins. After the Court handed down Erie, various mechanisms, including abstention and state certification, emerged to enable the federal courts to communicate with the state courts rather than blindly issuing their own provisional readings of ambiguous state law. The federal courts' willingness to adapt to their reduced lawmaking role in the federalism context by moving toward a more interactive model suggests that the courts similarly could adapt to their newly reduced interpretive role in the administrative realm post-Brand X. Specifically, this Article argues that an interactive approach - whereby federal courts consider soliciting agency views using either the primary jurisdiction doctrine or requests for agency amicus curiae briefs - would enable the courts to minimize those situations where a court will independently construe a statute one way in the absence of agency views only to have the relevant agency turn around and impose a contrary interpretation. Use of an interactive approach in the administrative context promises to further efficiency and uniformity, to minimize the frequency of confrontational games between agencies and courts, and to enable courts to capitalize on agency expertise.
Keywords: administrative law, judicial review, federal courts, Chevron deference, stare decisis
Suggested Citation: Suggested Citation
Watts, Kathryn A., Adapting to Administrative Law's Erie Doctrine. Northwestern University Law Review, Vol. 101, 2007; Northwestern Public Law Research Paper No. 900582. Available at SSRN: https://ssrn.com/abstract=900582