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Avoiding Absurdity? A New Canon in Regulatory Law

September 2002

Citation: ELR 11126

Author: Cass R. Sunstein

A New Principle

In the last two decades, federal courts have been developing a new and thus far unacknowledged canon of regulatory law: As a general rule, administrative agencies will be taken to have the authority to interpret statutes so as to avoid absurd or patently unreasonable results, even if the interpretation is hard to square with the literal language of the statute. This canon authorizes agencies, and in particular agencies that regulate the environment, far more flexibility in the interpretation of literal language than courts are now permitted to have. My narrow goal in this Dialogue is to describe and to defend this canon. My broader goal is to use the canon as a basis for urging that contemporary theories about interpretation go wrong by emphasizing large claims about democracy and legitimacy at the expense of an inquiry into the real-world capacities of our various institutions, including the U.S. Environmental Protection Agency (EPA) and the federal courts.

The new canon has old roots in the time-honored idea that courts will not construe statutes to produce absurdity.1 But that notion remains highly controversial, at least in some applications,2 in part because of a belief that much mischief might follow if courts attempt to avoid what they consider to be absurdity. For reasons to be elaborated, the canon that I am defending should be endorsed even by those who believe that courts have no business departing from statutory language.3 Compared to courts, regulatory agencies have a high degree of specialized competence and a large measure of political accountability. They are in a good position to know if a departure from literal language will unsettle the regulatory scheme. Because of these characteristics, courts should allow agencies to avoid absurdity, in the face of literal text, even in cases in which courts should not themselves exercise this power—and to allow agencies more freedom to assume this canon than courts.

The author is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago. Professor Sunstein is grateful to Adrian Vermeule for extremely helpful discussions.

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