An Empirical Examination of Agency Statutory Interpretation

By Amy Semet. Full text here.

How do administrative agencies interpret statutes? This Article looks behind the black box of agency statutory interpretation to review how administrative agencies use canons of construction and other tools of statutory interpretation to decide cases. Surveying over 7000 cases heard by the National Labor Relations Board (NLRB) from 1993–2016, I analyze the statutory methodologies the Board uses in its decisions in order to uncover patterns over time. Overall, I find no ideological coherence to statutory methodology. Board members often use statutory methodologies with dueling purposes, with majority and dissenting Board members using the same statutory methodology to support contrasting outcomes. The Board has also changed how it interprets statutes over time, relying in recent years more on policy pronouncements and textual debates and less on precedent or legislative history as the primary method of interpretation. After analyzing the empirical data, I set forth policy recommendations for how agencies should interpret statutes.