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Chevron for Juries Wayne State University Law Faculty Research Publications Law School 2015 Chevron for Juries William Ortman Wayne State University Follow this and additional works at: https://digitalcommons.wayne.edu/lawfrp Part of the Administrative Law Commons, Legislation Commons, and the Supreme Court of the United States Commons Recommended Citation William Ortman, Chevron for Juries, 36 CARDOZO L. REV. 1287 (2015) This Article is brought to you for free and open access by the Law School at DigitalCommons@WayneState. It has been accepted for inclusion in Law Faculty Research Publications by an authorized administrator of DigitalCommons@WayneState. CHEVRON FOR JURIES William Ortmant Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. rests on two now-familiar premises. First, for some statutes, the traditionaltools of statutory interpretationmore readily yield a range of plausible meanings than a single correct reading. Second, judges are not always the officials best positioned to select one interpretationof a statute from among the plausible options. Chevron relied on these premises to decide that when a courtfinds ambiguity in a statute administered by an agency, it must defer to the agency's interpretationof the statute, so long as it is reasonable. But while administrative law provided a doctrinal context for the Court's decision, Chevron's interpretive premises were about statutes generally, not statutes administeredby agencies. Commentators seldom recognize the general nature of Chevron's interpretivepremises. This Article shines a spotlight on it by applying the premises to a class of statutes outside administrative law. Judges, it argues, are not the best-situated actors in our legal system to pick from among the legally plausible readings of statutes that govern the conduct of the generalpublic. Indeed, they are not even the best-situated actors in the courtroom. Juries possess epistemic and political qualities that make them expert interpreters of conduct-regulating, generally-applicable statutes. This Article invokes that expertise to propose "Chevron for Juries," a series of procedural reforms that would transfer interpretive primacyfor this class of statutes to juries. TABLE OF CONTENTS IN TRO D U CTIO N .............................................................................................................. 1288 I. B UILDIN G B LOCKS ..................................................................................................1291 A. Chevron: Doctrine and Theory ................................................................1291 t Climenko Fellow and Lecturer on Law, Harvard Law School. For helpful comments, many thanks to Al Alschuler, Jake Gersen, Janet Halley, Saul Levmore, Jonathan Masur, Todd Rakoff, Bijal Shah, Danielle Shelton, Matthew Stephenson, Susannah Tobin, Adrian Vermeule, and participants in seminars or workshops at Harvard Law School, Drake Law School, and New England Law I Boston. 1287 1288 CARDOZO LAW REVIEW [Vol. 36:1287 1. Chevron and the Zone of Am biguity .......................................... 1292 2. Chevron's Institutional Logic ....................................................... 1293 B. Mechanics of Chevronfor Juries.............................................................. 1296 1. Determ ining Jury Eligibility ......................................................... 1297 a. Conduct and Decision Rules Distinguished .................. 1297 b. Statutes of G eneral Applicability ..................................... 1299 2. Procedural Reform s ....................................................................... 1299 a. Jury Instructions ................................................................ 1300 b. Dispositive M otions ........................................................... 1301 c. Interpretive M otions in Lim ine ....................................... 1302 d. Sources of Evidence ........................................................... 1303 C. Chevron and Chevronfor Juries.............................................................. 1304 D. Chevronfor Juries and the HistoricalRole of the Jury .......................... 1305 II. ARGUMENTS ............................................................................................................ 1308 A. Epistem ic Legitimacy ................................................................................. 1308 1. "Accuracy" in Statutory Interpretation ...................................... 1309 2. The Jury Theorem ......................................................................... 1311 3. Juries and the M ajor M odels of Interpretation ......................... 1315 a. Textualism .......................................................................... 1318 b. Intentionalism .................................................................... 1319 c. Purposivism ........................................................................ 1321 B. PoliticalLegitim acy.................................................................................... 1323 1. jurors as Diverse Problem Solvers ............................................... 1323 2. Jury Decisions as Dem ocratic ...................................................... 1326 a. The Democratic Legitimacy of Jury Decisions .............. 1327 b. Juries Versus Judges .......................................................... 1331 III. OBJECTIONS ............................................................................................................. 1334 A. (A bsence of) Precedent............................................................................... 1334 1. Predictability of Legal Outcom es ................................................ 1334 2. Consistency ..................................................................................... 1337 3. Litigation Costs .............................................................................. 1338 B. Jury Incompetence and Bias...................................................................... 1339 C. D istributionalConsequences .................................................................... 1341 CONCLUSION ................................................................................................................... 1342 INTRODUCTION Chevron U.S.A, Inc. v. Natural Resources Defense Council, Inc.1 rests on two important premises about statutory interpretation: (i) for 1 467 U.S. 837 (1984). 20151 CHEVRON FOR JURIES 1289 many statutes, the traditional tools of interpretation more naturally yield a range of permissible meanings than a single "best" reading, and (ii) nonjudge interpreters sometimes possess epistemic and political advantages over judges in selecting from among the legally plausible options.2 Applying these premises to statutes governing the administrative state, Chevron announced that judges must defer to reasonable agency interpretations of certain ambiguous statutes. The import of Chevron's premises, however, is not limited to statutes that involve administrative agencies. Outside administrative law, just as inside it, many statutes have a range of permissible meanings. And for many statutes having nothing to do with agencies, judges may not be the optimal interpreters. Given the general nature of the Court's premises, one might have expected Chevron to prompt examination of other types of statutes in search of superior nonjudge interpreters. But with few exceptions, that examination has not come to pass, and Chevron's interpretive premises have remained local to administrative law.3 This Article offers a partial remedy by applying Chevron's premises to a class of statutes outside administrative law. My focus is on statutes that govern the conduct of the general public. The Article's central claim is that juries have epistemic and political advantages over judges in choosing from among the permissible meanings of such statutes. Juries, in other words, are to this class of statutes what agencies are to statutes within Chevron's domain. I invoke the jury's epistemic and political advantages to propose "Chevron for Juries," a series of procedural reforms that would make juries the front-line interpreters of generally- applicable, conduct-regulating statutes. Having relinquished interpretive primacy over these statutes, judges in the Chevron for Juries framework would police the outer boundaries of permissible statutory meaning through procedural devices that mirror traditional Chevron analysis. This Article develops its proposal in three parts. Part I contains the building blocks. It first defends the claim that Chevron rests on the 2 See ADRIAN VERMEULE, JUDGING UNDER UNCERTAINTY: AN INSTITUTIONAL THEORY OF LEGAL INTERPRETATION 205-15 (2006); Cass R. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2589-98 (2006); see also infra notes 15-34 and accompanying text. 3 There are a few exceptions in the academic literature. Amanda Frost invoked Chevron-like reasoning to propose that courts certify difficult statutory interpretation problems to Congress. Amanda Frost, Certifying Questions to Congress, 101 Nw. U. L. REV. 1 (2007). A student note in the HarvardLaw Review likewise proposed Chevron-like deference to congressional resolutions. Note, A Chevronfor the House and Senate: Deferring to Post-Enactment CongressionalResolutions That Interpret Ambiguous Statutes, 124 HARV. L. REv. 1507 (2011). In a similar vein, Dan Kahan relied on Chevron's interpretive premises to propose extending traditional Chevron
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