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April 26, 2010


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Stephen Williams

I realize that neither of the questions presented to the students was identical to that faced by judge. But, even apart from some useful distinctions mentioned by the authors, the process through which the judge works (in a case reasonably well briefed on both sides, and not a slam dunk for either) seems to me likely to produce a state of mind similar to that of the student asked whether ordinary people would find the statute ambiguous.

It would be nice if one could figure out whether judges deviate from neutrality more than students posed the "ordinary person" question, but that would require finding a benchmark of neutrality, which seems like the Holy Grail.

Incidentally, a side issue: Chevron doesn't really require classifying a provision as ambiguous or not, though courts seem to enjoy wielding the two "prongs." The only question is whether the statute admits the agency's interpretation. Among people making this point, the most recent are Matt Stephenson and Adrian Vermeule in U Va L Rev.

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