Fordham Law Review’s Chevron at 30 Symposium (AdLaw Bridge Series)

by Chris Walker — Friday, Nov. 7, 2014@chris_j_walker

On Monday the Fordham Law Review  published a symposium entitled Chevron at 30: Looking Back and Looking Forward, which my colleague Peter Shane and I organized to commemorate Chevron‘s thirtieth anniversary. I previously blogged about the Foreword we penned here, and the final version of that Foreword can be found here. To get a full introduction to the symposium, the Foreword is probably the best place to go. But I thought I’d also include a brief overview here of the various contributions, organized around the two core themes that emerged from the symposium.

Chevron at 30 Years: Continued Uncertainty about Scope and Application

1. In “Chevron at the Roberts Court: Still Failing After All These Years,” Jack Beermann takes a look at how the Roberts Court has applied administrative law deference doctrines, including an examination of the Justices’ voting records, a qualitative analysis of certain key decisions, and a review of how the Court has patrolled the boundary between Chevron deference and APA judicial review standards. As the title suggests, Professor Beermann generally finds that the Court has failed miserably and that “theChevron doctrine is a failure that should be jettisoned at the earliest possible time.”
2. In “Chevron and Skidmore in the Workplace: Unhappy Together,” James Brudney reports the findings of his study of 730 Supreme Court decisions to evaluate the use of Chevron and Skidmore in the workplace law context. Among other things, Professor Brudney concludes that the substance may trump the deference doctrine in determining Justices’ votes and that Chevron did not create any real change in the Court’s overall treatment of agency deference.
3. In “The Three Phases of Mead,” Kristin Hickman explores three different views about the relationship between Chevron, Skidmore, and Mead — the decision tree model, the blended approach, and the Scalia approach — and concludes that the decision tree model is the most prevalent, especially at the federal circuit level.
4. In ” Step Zero After City of Arlington,” Thomas Merrill embraces Chief Justice Robert’s dissent inCity of Arlington v. FCC, agreeing that before proceeding to the Chevron two-step analysis the court must find a delegation of interpretive authority over the particular statutory provision in question.
5. In “Federalism at Step Zero,” Miriam Seifter argues that federalism should play no role at ChevronStep Zero — because federalism concerns are varied and diverse and not suitable for a one-size-fits-all approach. Instead, federalism values should come into play at Chevron Step Two as well as under the APA’s arbitrary and capricious review.
6. In ” In Search of Skidmore,” Peter Strauss focuses on another deference standard that celebrates its seventieth birthday in the same year as Chevron‘s thirtieth: Skidmore.  He argues that even at Step One some deference (Skidmore weight) should be owed to the agency’s position and that the City of Arlington Court’s suggestion that no deference applies to Step One questions was error.

Impact of Chevron Outside the Court

7. In “Improving Agencies’ Preemption Expertise with Chevmore Codification,”  Kent Barnett explores the new development in congressional drafting of codifying a judicial review standard less deferential than the Chevron default. In particular, the Dodd-Frank Wall Street Reform and Consumer Protection Act instructs courts to apply Skidmore deference to preemption decisions by the Office of the Comptroller of the Currency. Professor Barnett argues that such Chevmore codification is a welcome development because, among other things, it should encourage agencies to develop expertise and solicit feedback from experts outside the agency.

8. In “What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation,” Abbe Gluckassembles the various lessons that Chevron offers for statutory interpretation more generally. Among other things, she draws on the pathbreaking empirical study she conducted with Lisa Bressman of congressional drafters to provide insights into how statutory interpretation should be conducted.

9. In “Chevron’s Generality Principles,” Emily Hammond  explores Chevron’s role in legitimizing administrative governance by looking at contexts outside of judicial review of agency statutory interpretation. Based on the rationales utilized in these contexts, she offers three metrics for measuring the legitimacy of agency action that is either unreviewable or rarely reviewable: (1) whether the agency acts within its scope of statutory authority, (2) exercising its expertise to provide uniformity in law (3) with sufficient procedures in place. Although based on Chevron, these legitimizing metrics sound a lot more like the Skidmore factors.

10. In “Chevron and Deference in the State Administrative Law,” Aaron Saiger provides a unique perspective on the impact — or, better said, lack thereof — of Chevron on state administrative law. After reviewing a number of state-by-state surveys on Chevron and state-level administrative law, he concludes that states have not embraced Chevron and then explores the reasons why they haven’t.
11. In “Chevron Deference, the Rule of Law, and Presidential Influence in the Administrative State,” Peter Shane explores the President’s role in the Chevron deference regime. He argues that courts need to be careful before according Chevron deference to agency interpretations of law that are revealed to be the product of White House pressure where the record reveals the agency’s earlier preference for a different interpretation that itself would have been reasonable enough to warrant Chevron deference.
12. And finally, in “Chevron Inside the Regulatory State: An Empirical Assessment,” I report theChevron-related findings from a 195-question survey I conducted of 128 federal agency rule drafters at seven executive departments and two independent agencies. Among these findings, the rule drafters surveyed overwhelmingly indicated familiarity with and use of the deference doctrines in their statutory interpretation efforts, and many also indicated that federal agencies are more aggressive in their interpretive efforts if they are confident their interpretations will receive Chevron deference (as opposed to Skidmore or no deference at all).
*     *     *
As you can tell from this brief overview, these terrific symposium contributions provide a great bridge between the theory and practice of administrative law as well as summarize nicely the impact Chevron and related deference doctrines have had on the all three branches of government over the last three decades.

 

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Vice-Chair of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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