Dynamic Statutory Interpretation in the Administrative State

Edward Rubin

doi:10.2202/1539-8323.1021

Eskridge's theory of dynamic statutory interpretation is addressed to courts, and makes a highly persuasive argument, but it is even more convincing with respect to the interpretive functions of administrative agencies. To begin with, agency adjudicators are closely connected to the policy functions of the agency. More importantly, agency rule making and enforcement activities are necessarily interpretive, since they are supposed to implement an enacted statute, and here dynamic statutory interpretation is the only plausible approach to such interpretation. The objections to statutory interpretation that Eskridge takes so seriously in his article - formalism, separation of powers, public choice and the countermajoritarian difficulty - are all insubstantial in the administrative rule making and enforcement context. Thus, when courts, which are Eskridge's main concern, review agency decisions, as opposed to deciding common law cases, they are necessarily reviewing a dynamic interpretation. This does not require them to adopt dynamic statutory interpretation as their own approach, but it provides highly persuasive reasons for them to do so. The Chevron decision supports this approach. Although administrative agencies are a unique feature of the modern state, the necessity that they adopt a dynamic approach in their rule making and enforcement activities reveals a general feature of government that supports Eskridge's theory, and that has been obscured by more traditional elements of legal doctrine.

Dynamic Statutory Interpretation in the Administrative State

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