Great Questions and Coverage of My Inside Agency Interpretation Empirical Study

by Chris Walker — Saturday, Oct. 25, 2014@chris_j_walker
As I mentioned in a prior post, I plan on blogging more about the results of my empirical study inside agency statutory interpretation, which is forthcoming in the Stanford Law Review and an updated draft of which is available on SSRN here. In the interim, Reeve Bull has done an excellent post and overview of the piece over at the Administrative Conference of the United States Administrative Fix Blog. And Paul Daly just posted a great write-up of the piece over at Administrative Law Matters.
Both raise a number of questions about the implications of the study findings and lines for further inquiry. Reeve Bull focuses on questions about agency interpreter fidelity:
Though Professor Walker avoids taking sides in the “purposivism” v. “textualism” debate, the study contains a treasure trove of information that both camps should find intriguing (and might use as ammunition in the incessant skirmishes playing out in judicial opinions and the legal literature). Textualists should be heartened by the relatively extensive reliance placed on the various textual canons, but some canons are clearly deemed far more influential than others. Purposivists, in turn, may draw support from the purportedly high level of agency solicitude for legislative history, yet rule-writers generally consider that source less influential than do Hill staffers, and the narrative responses suggest that many agency officials, though they feel obliged to consider the legislative history, deem its persuasive value rather minimal. In short, regardless of one’s preferred mode of statutory interpretation, the study supports conflicting conclusions concerning whether agency officials are acting as “faithful agents” when implementing Congressional statutes.
In this light, Professor Walker’s work elucidates a number of interesting follow-up inquiries. For instance, one might examine the relative persuasiveness of the various tools of interpretation: though agency officials generally consider both the textual canons and legislative history to comprise valuable sources of information, how do agency officials react when an interpretation favored by textual analysis squarely conflicts with that supported by the legislative history? The answer to this inquiry, though admittedly difficult to ascertain empirically (especially as such cases of direct conflict are exceedingly rare), would shed some light on whether bureaucratic “agents” are more faithful to the textualist or purposivist school of statutory interpretation. Given agency officials’ nearly universal awareness of the Chevron doctrine, a separate study might examine the extent to which this creates a perverse incentive, such that agency officials exploit the additional deference they will receive on judicial review by being less careful in the initial interpretive exercise. Again, this question would prove highly difficult to test empirically, but it would also bear upon the “faithfulness” of bureaucratic “agents” to the will of the Congressional “principal.”
Whereas Paul Daly focuses on questions about the interaction between policy objectives and interpretive tools, as well as how the political appointees at the agencies not surveyed may trump the career officials surveyed in light of such policy objectives:
This is an excellent study, though as Walker acknowledges it raises many questions. An interesting one for me is how decision-makers resolve conflicts between agency objectives and interpretive principles. What weight are the principles of statutory interpretation given by rule-drafters (and their non-lawyer superiors) when they conflict with policy goals? Indeed, as a general matter, are the prescriptions of rule-drafters generally accepted by their superiors, or are they revised to cohere with the agency’s general orientation? One might also ask, in relation to my ‘realism’ point, whether all decision-makers have the same expertise as the rule-drafters surveyed for this paper. In systems where front-line decision-makers have interpretive authority they are (I hypothesize) likely to have less technical prowess in statutory interpretation.
These are excellent questions and suggestions for further research. Although the findings uncovered in the empirical study provide strong support to challenge a number of theories about agency statutory interpretation (while providing support for others), my primary objective was to shed some empirical light on the theoretical discussions in order to suggest lines for further empirical inquiry. It was intended to be exploratory in nature, so I’m pleased that initial reactions are raising a number of important questions along these lines.
Another area that I think is ripe for further empirical investigation in light of the findings of this study concerns the role of federal agencies in the legislative process. The study findings explored in Part III of the article underscore the organizational divide within many agencies between officials who assist Congress in drafting statutes and those who interpret the statutes through regulation. These findings were reinforced in the comments made by agency officials during the interview and survey process, and they raise a number of questions that merit investigation, including: Under an agency’s typical structure, does the agency’s legislative experience get incorporated into its rulemaking activities, such that the Congress-agency relationship Professor Strauss has detailed actually extends to agency statutory interpretation? Or do the legislative experts at the agency only get involved once there is a threat of judicial challenge? Are there better ways to structure an agency general counsel’s office to make sure that interaction occurs? Similarly, does an agency’s organizational structure facilitate the conveyance of the knowledge gained by regulatory affairs staff in implementing the congressional mandates back to the legislative affairs staff who is helping Congress adjust those mandates via the legislative process? Are there better structures to leverage the agency’s regulatory expertise in the legislative process (and vice versa)?
The answers to these questions—questions I hope to address in a follow-up study—would add to the textualism-purposivism debate in agency statutory interpretation. After all, agency expertise in the legislative process—and the agency’s accompanying use of such expertise when interpreting statutes it administers—is a driving reason for the scholarly call from Bill Eskridge (here), Jerry Mashaw (here),Peter Strauss (here), and Cass Sunstein and Adrian Vermeule (here), among others, for a more purposivist approach to agency statutory interpretation (as opposed to judicial statutory interpretation) based on comparative institutional expertise. This purposivist call, it seems, relies on the assumption that the agency officials who interpret the statutes via regulation actually exercise (or even have) that expertise when regulating. The findings of this empirical study cast some doubt on that assumption, and at the very least suggest more investigation is required.
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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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