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Kenneth A. Bamberger

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Provisional Precedent: Protecting Flexibility in Administrative Policymaking

Kenneth A. Bamberger

The rule of strict stare decisis, when a court construes a statute before an agency does, the judicial interpretation becomes binding precedent, even when Congress has delegated primary interpretive authority to the agency. In this Article, Kenneth Bamberger argues that the Supreme Court’s adherence to this strict rule of precedent for the interpretations of administrative statutes undermines the separation-of-powers justifications for agency administration and jeopardizes effective policymaking. He illustrates how the Supreme Court’s decision in United States v. Mead, which limits the types of agency constructions that deserve judicial deference, dramatically increases the opportunities for courts to interpret statutes on their own. In response to the constitutional and normative disconnects caused by judges’ enhanced ability to commandeer agency discretion, Bamberger proposes a model of provisional precedent as an alternative to strict stare decisis. This approach, based on the federalism model that governs federal court adjudication of state law issues, gives stare decisis effect to reasonable judicial constructions of regulatory statutes only until governing agencies make binding interpretations of their own.