Legal Commentary

Being a panel chair for tomorrow's ALEA conference, I thought I'd go that extra mile and read the papers of my panelists in advance of the conference. All three were interesting, but Yehonatan Givati's paper on ?Strategic Statutory Interpretation by Administrative Agencies? inspires me to ask the question: What do bureaucrats want? More pointedly, why do academics -- especially economically oriented ones -- persist in assuming that bureaucrats want power?

Givati sets up a model rooted in the assumption that "as long as no appeal [to a court] is provoked, a more aggressive interpretation [of statutes] is preferred to a less aggressive one." (page 2). Why is this a plausible assumption on which to erect a model? It has been three years since Daryl Levinson published "Empire-Building Government in Constitutional Law," and yet model builders are still relying on the old saw that bureaucrats want to push the statutory envelope with "aggressive" interpretation of statutes. As Levinson noted, there is very little evidence to support such an assumption. Bureaucrats might be time-servers who like the quiet life. Or they might have been appointed to head an agency that their boss wants to euthanize (think of Republican Presidents and HUD). Or they just might be legalistically oriented and want an interpretation that is highly formalistic and therefore easy for their subordinates to follow and for them to defend. Or they might be captured by the people that they regulate and choose the interpretation that most accords with their views -- which might be a form of inaction unappealable under Heckler v Chaney.

There is, in short, no general reason to believe that bureaucrats, in general, like to push the envelope of the statutes that they administer in order to enlarge their discretion or power. but it seems to me that economists like to assume that they do. Any thoughts as to why?

(Incidentally, the premise built into Givati's model does not affect the interest of Givati's "surprise" ending, which is that increasing judicial deference will not necessarily induce agencies to be more aggressive in statutory interpretation. Briefly, Givati poses the possibility that (a) firms will be more likely to appeal if courts defer more to agency interpretations and (b) agencies do not like incurring appeals. Find (a) counter-intuitive? Read the paper).