When Can You Teach an Old Law New Tricks

This article considers the distinctive legal and institutional dynamics involved when agencies interpret existing statutes for novel purposes. It argues that courts take into account policy-specific institutional factors, such as legislative dysfunction, when they consider the propriety of such novel interpretations, rather than employing universal ideas about institutional competencies. Where Congress has shown an inability to legislate in a policy area, courts are more likely to sympathize with changes in interpretation as partial substitutes for new legislation, but relying on old statutory language creates problems of statutory mismatch. The article contends that many arguments over statutory meaning mask disagreements about the appropriate roles of agencies, Congress, and courts—some of which could be resolved through systematic empirical investigation. The article’s institutional perspective is used to reconcile two of the most important statutory interpretation decisions in recent years, FDA v. Brown & Williamson Tobacco Corp. (2000) and Massachusetts v. EPA (2007).