Fun with Administrative Law: A Game for Lawyers and Judges

Abstract

The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure the real issues. Grammatical arguments about things like the “rule of the last antecedent” abound, and they rarely serve to make clear language any clearer, or to clarify ambiguous language. At its worst, this type of analysis frustrates one goal of the requirement of reasoned decisionmaking: preventing agency officials “from cowering behind bureaucratic mumbo-jumbo.” In this context, it is not surprising to see courts treat legislative goals and public policy as all but irrelevant to their decisions. Perhaps because much of the population has already written lawyers off as idiots and leeches, there is little public outrage at the spectacle of courts resolving important public issues in terms that only lawyers can understand. And even lawyers do not necessarily take these doctrines seriously.