Document Type
Article
Publication Date
2016
ISSN
0741-9457
Publisher
Yale Law School
Language
en-US
Abstract
There is now some consensus that the context of a statutory term plays a crucial part in its meaning.1 The argument continues, however, over what "kinds of context ... matter."2 Building on scholarship that addresses the wide range of contexts that contribute to legal meaning,3 this Article illuminates two factors crucial to interpreting legal language: the social nature of meaning-making and the practical nature of interpretive competence. I locate my inquiry in the judicial review of agency statutory interpretation, a particularly fruitful arena for analyzing statutory interpretation more generally.
To fill the gap, Part I of this Article first illuminates the hidden complexities of reasonableness review. Evaluating the reasonableness of an agency's statutory interpretation sounds like the sort of work courts are used to doing, but multivalence poses a challenge to courts' traditional attempts to assign one final, correct meaning to every statutory term. And the kinds of things regulatory statutes refer to often require a knowledge of science, technology, and even social life that goes beyond judges' training. While courts and commentators have suggested several ways to solve the conundrum of reasonableness review, Part I.B. demonstrates that the doctrine remains in flux.
In Part 11, I suggest one reason courts have had trouble setting standards and theorizing reasonableness-they treat both linguistic meaning and agency competence as undifferentiated. Like traditional statutory interpretation, administrative review doctrine treats all linguistic meanings as similarly constructed. 7 Yet, decades of research on language use and communicative practices have demonstrated the opposite. Linguistic signs gain meaning in a variety of ways that depend on social practices and facts that exceed the linguistic sign itself. Most prominently, statutory terms can gain meaning through different, sometimes multiple, communities of meaning-givers. Some terms refer to legal constructions; legal authorities are the key meaning-givers for such law-based terms. Others involve realities external to legal process, such as physical facts or social conditions. Such world-based terms gain meaning through non-legal communities. And, of course, many terms have a life both in and out of the law. Recognizing that linguistic signs can take multiple paths to meaning would yield a more realistic image of courts' abilities to interpret different kinds of statutory language.
Similarly, Part II.C shows that the doctrine does not distinguish between the institutional capacities of courts and agencies to interpret the meaning of a given term, on the one hand, and the capabilities institutional actors actually utilize when performing this task, on the other. This flattening of possibility and capability, or potential competence and actual competence, gives the doctrine an unhelpful idealism-it treats competence as something that inheres in the nature of an organization, rather than as something that is manifested, and changed, through practices. Although courts do sometimes acknowledge this difference in an ad hoc way, building the distinction into the reasonableness inquiry explicitly would produce a more realistic assessment of the two institutions' interpretive abilities.
Taking account of differences in meaning and competence does not militate for any one course of action. In Part II, I suggest some ways to institutionalize this recognition through doctrinal orientation and institutional organization. Part IV explains how this can give courts a more nuanced, context-sensitive way to differentiate their deference. It may argue for treating more world-based terms as presumptively multivalent, leaving agencies more flexibility to alter their interpretations; encourage a beneficial dialogue between courts and agencies; help reconcile linguistic realism with rule-of-law ideals; and relate statutory interpretation doctrine with policy choice doctrine.18 It is thus worth considering ways to integrate a recognition of these differences into judicial review. In Part V, I suggest some avenues for further research.
Recommended Citation
Anya Bernstein,
Differentiating Deference
,
33
Yale Journal on Regulation
1
(2016).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4283
