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69 Md. L. Rev. 791 (2009-2010)
The Importance of Being Ambiguous: Substantive Canons, Stare Decisis, and the Central Role of Ambiguity Determinations in the Administrative State

handle is hein.journals/mllr69 and id is 799 raw text is: MARYLAND LAW REVIEW VOLUME 69 2010 NUMBER 4 © Copyright Maryland Law Review 2010 Articles THE IMPORTANCE OF BEING AMBIGUOUS: SUBSTANTIVE CANONS, STARE DECISIS, AND THE CENTRAL ROLE OF AMBIGUITY DETERMINATIONS IN THE ADMINISTRATIVE STATE BRIAN G. SLOCUM* ABSTRACT The concept of ambiguity plays an underappreciated and un- dertheorized role in the judicial review of agency statutory interpreta- tions. Its importance is difficult to exaggerate. Ambiguity often functions as the determiner of whether an agency's statutory interpre- tation will receive deference, as well as whether courts will apply the stare decisis standard for statutory interpretation cases instead of the recent principle that agencies can change their interpretations even in the face of a previous conflicting judicial interpretation. The prominence of ambiguity has caused many commentators and courts to proclaim a bright line distinction between interpretive tools that help evaluate statutory clarity and those that resolve statutory uncer- tainty. Although linguists would agree that ambiguity is unexcep- tional in normative legal texts due to its ubiquity, the judiciary, which has created a highly idiosyncratic definition, is far more selec- tive about declaring language to be ambiguous. The judiciary's se- lectivity regarding ambiguity is driven by its conflation of ambiguity Copyright © 2010 by Brian G. Slocum. * Associate Professor of Law, University of the Pacific, McGeorge School of Law. J.D., Harvard Law School, 1999. The author would like to thank Steve Calandrillo, Miriam Cherry, Omar Dajani, Scott Dodson, Brian Foley, LindaJellum, Stephen Legomsky, Thom Main, David L. Shapiro, Ted Sichelman, John Sprankling, Jarrod Wong, and the partici- pants at a faculty workshop at McGeorge School of Law for their valuable comments on an earlier draft of this Article.

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