Academic journal article Notre Dame Law Review

The Ambiguous Ambiguity Inquiry: Seeking to Clarify Judicial Determinations of Clarity versus Ambiguity in Statutory Interpretation

Academic journal article Notre Dame Law Review

The Ambiguous Ambiguity Inquiry: Seeking to Clarify Judicial Determinations of Clarity versus Ambiguity in Statutory Interpretation

Article excerpt


"How clear is clear?" (1) This question has often been asked regarding Step One of the Chevron doctrine, but its relevance is not limited to statutory interpretation in the administrative state. (2) Many interpretive doctrines, including Chevron, (3,) are triggered by a threshold finding of ambiguity. The threshold inquiry by a judge that a statute is either clear or ambiguous is a critical determination that can foreclose or make available a variety of interpretive tools. (4) "But how do courts know when a statute is clear or ambiguous? In other words, how much clarity is sufficient to call a statute clear and end the case there without triggering the ambiguity-dependent canons?" (5)

Though the importance of the ambiguity inquiry in statutory interpretation is well documented, (6) there is no established method governing the judge's threshold determination of ambiguity versus clarity. (7) In fact, there is no consistent definition of ambiguity. (8) As a result, the availability of the interpretive doctrines that purportedly depend on a finding of statutory ambiguity is often uncertain. Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit has recently proposed a new framework for determining when the use of such interpretive tools is appropriate. Motivated by the concern that numerous judicial "decisions leave the bar and the public understandably skeptical that courts are really acting as neutral, impartial umpires in certain statutory interpretation cases," (9) Judge Kavanaugh seeks to reduce or eliminate threshold determinations of clarity versus ambiguity by establishing additional principles to guide the judicial inquiry: he abolishes the ambiguity requirement for particular canons of interpretation, and removes other canons from the practice of statutory interpretation altogether.

This Note will apply Judge Kavanaugh's proposed mechanism to the interpretation of the Title IX prohibition of discrimination on the basis of sex. (10) Part I discusses recent cases decided by the Roberts Court that demonstrate the difficulties with the current jurisprudential approach to the clarity versus ambiguity determination. Part II explores Judge Kavanaugh's recent proposal for reducing threshold findings of ambiguity. Part III considers various interpretive methods and applies Judge Kavanaugh's proposal in the context of Title IX. Finally, this Note concludes that Judge Kavanaugh's approach, while most dramatically transforming the purposivist approach, also has consequences for the textualist inquiry.


In recent years, the Roberts Court has demonstrated a willingness to consider factors beyond the statutory text in making the threshold determination of whether a text is clear or ambiguous. (11) Consideration of such factors during the initial inquiry disrupts the traditional reservation of some interpretive doctrines for cases of statutory ambiguity only. Richard Re has described this approach as "The New Holy Trinity":

Instead of adhering to the New Textualism, the Roberts Court has
repeatedly and visibly embraced what might be called "The New Holy
Trinity." This approach calls for consideration of non-textual factors
when determining how much clarity is required for a text to be clear.
Aptly enough, the New Holy Trinity is itself triply trinitarian. It
revitalizes the jurisprudential legacy of the original Holy Trinity. It
is exemplified by three recent Supreme Court cases. And it rests on
attention to three considerations: text, pragmatism, and purpose. (12)

Using Bond v. United States, (13) Yates v. United States, (14) and King v. Burwell (15) as illustrations, Re suggests that the Roberts Court has renewed the approach found in Church of the Holy Trinity v. United States (16) by making the spirit of the statute relevant to the threshold determination of clarity versus ambiguity. …

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