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Judicial Deference to Inconsistent Agency Statutory Interpretations

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  • Yehonatan Givati
  • Matthew C. Stephenson

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 the ideological content of agencies' interpretations. We find a nonmonotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism. This relationship arises because as courts become less deferential to revised interpretations, the initial agency finds it more attractive to promulgate a moderate interpretation that will not be revised. However, the less deferential the courts, the more extreme this moderate interpretation becomes. Normatively, our results suggest that an interest in responsiveness of interpretive policy to the preferences of the incumbent leadership favors deference to revised interpretations, whereas an interest in ideological moderation favors a somewhat less deferential posture to interpretive revisions.

Suggested Citation

  • Yehonatan Givati & Matthew C. Stephenson, 2011. "Judicial Deference to Inconsistent Agency Statutory Interpretations," The Journal of Legal Studies, University of Chicago Press, vol. 40(1), pages 85-113.
  • Handle: RePEc:ucp:jlstud:doi:10.1086/658407
    DOI: 10.1086/658407
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    1. Joseph L. Smith, 2007. "Presidents, Justices, and Deference to Administrative Action," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(2), pages 346-364, June.
    2. McCubbins, Mathew D & Noll, Roger G & Weingast, Barry R, 1987. "Administrative Procedures as Instruments of Political Control," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 3(2), pages 243-277, Fall.
    3. Shepsle, Kenneth A., 1992. "Congress is a "They," not an "It": Legislative intent as oxymoron," International Review of Law and Economics, Elsevier, vol. 12(2), pages 239-256, June.
    4. De Figueiredo, Rui J. P., 2002. "Electoral Competition, Political Uncertainty, and Policy Insulation," American Political Science Review, Cambridge University Press, vol. 96(2), pages 321-333, June.
    5. Matthew C. Stephenson, 2003. "“When the Devil Turns … ”: The Political Foundations of Independent Judicial Review," The Journal of Legal Studies, University of Chicago Press, vol. 32(1), pages 59-89, January.
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    Cited by:

    1. Adrian Vermeule, 2015. "Rationally Arbitrary Decisions in Administrative Law," The Journal of Legal Studies, University of Chicago Press, vol. 44(S2), pages 475-507.
    2. Matthew C. Stephenson, 2013. "Does Separation of Powers Promote Stability and Moderation?," The Journal of Legal Studies, University of Chicago Press, vol. 42(2), pages 331-368.

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