Corpus Linguistics in the Chevron Two-Step

By Crump, Jacob | Brigham Young University Law Review, March 1, 2018 | Go to article overview

Corpus Linguistics in the Chevron Two-Step


Crump, Jacob, Brigham Young University Law Review


I. Introduction

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.1 changed the relationship between administrative agencies and the courts that frequently review agency action.2 Chevron established a famous two-step analysis for determining whether an agency interpretation of a statute will be given controlling weight by reviewing courts. Step One requires that a court-using "traditional tools of statutory construction"3 - determine whether Congress has directly spoken to the precise point at issue or whether the statute is ambiguous.4 If a court finds ambiguity or silence in the statute, it assumes that the ambiguity constitutes an implicit delegation by Congress to the agency to interpret the statute authoritatively.5 In such cases, the court proceeds to step Two, where it asks whether the agency's interpretation is a reasonable one. If it is, courts then give controlling weight to the agency's authoritative interpretation.6

Step One requires courts to make difficult determinations7: Did Congress directly speak to the precise question at issue in this case? What does it mean for Congress to speak "directly" or "precisely?" Step Two's reasonability analysis can be even less tethered to the text of the statute, and therefore, more difficult: Is the agency's interpretation a "reasonable" one?8 Many of the difficulties presented to courts by the two steps are similar, and as a result, the line between Step One and Step Two can be blurry.9

Chevron has its fair share of critics and criticisms,10 but the criticism most relevant to this Comment is that Chevron - though aimed at reducing judges' ability to insert their own policy preferences into ambiguous statutesu - still allows judges to consider those preferences.12 Before the Chevron regime was introduced in 1984, questions of deference to agency interpretations of law were generally analyzed under the framework established by the U.S. Supreme Court in Skidmore v. Swift & Co.13 Under Skidmore, courts examine several factors to determine the persuasive weight of the agency's interpretation.14 Because of Skidmore's malleability, judges were easily able to slip policy preferences into a decision.

Chevron was supposed to help solve this free agent problem, but it may not have. Step One allows for enough discretion that courts can produce results all over the map, and Step Two's inquiry into reasonableness or permissibility is even more nebulous. What seems reasonable to one judge can appear absurd to another, because our individual experiences easily influence our perception of reasonableness.15

Especially problematic Chevron cases are those where the question of agency deference hinges on a single term or phrase. In these cases, the temptation is for judges to reflexively turn to dictionaries to marshal support for their own intuitions about linguistic ambiguity and the reasonableness of various interpretations. But the problem is, this type of reasoning allows judges to look out over the crowd of dictionary definitions and pick out their friends.16

So what can be done? One possible solution is to focus on more data-driven, transparent approaches to discerning language meaning. This Comment discusses one possible tool in a judge's interpretive toolkit-corpus linguistics - and suggests it can be used to achieve more objective, data-driven results in Chevron cases. Corpus linguistics provides access to patterns and trends of actual language usage and allows for empirical determinations regarding linguistic meaning. it thus has significant implications for administrative law by helping courts arrive at more demonstrably accurate semantic conclusions in Chevron cases.

To demonstrate how this can be done, this Comment examines the Supreme Court's 1994 decision in MCI Telecommunications Corp. v. AT&T Co.17 To begin, Part II of this Comment briefly reviews the Chevron decision. Part III then introduces corpus linguistics and identifies advantages this approach has over the use of traditional dictionaries in many contexts. …

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