Most Cited Supreme Court Administrative Law Decisions

by Chris Walker — Thursday, Oct. 9, 2014@chris_j_walker

SPOILER ALERT: The most cited Supreme Court administrative law decision of all time is Chevron.  Coming in second place, however, may be a bit more surprising:  It’s the Rehnquist Court’s foundational standing decision Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  This should provide more fuel to the fiery debate on whether the signature move of the Rehnquist (and Roberts) Court is to reinvigorate the standing requirement for suing the government.

As part of the Fordham Law Review’s Chevron at 30 Symposium, my colleague Peter Shane and I have penned a foreword to introduce the excellent contributions.  A draft of that foreword is here, and an excellent group of scholars have contributed to the symposium, including Kent Barnett, Jack Beermann, Jim Brudney, Abbe Gluck, Emily Hammond, Kristin Hickman, Tom Merrill, Aaron Saiger,Miriam Seifter, and Peter Strauss.  I’ll blog more about the various contributions in the coming weeks once the symposium issue is published.

In the foreword Peter and I wanted to state what we thought was an obvious fact—that Chevron is the most cited administrative law decision of all time.  But it turns out that, while some had made that assertion in various essays and articles, we could find no study that had attempted to quantify the citation counts for administrative law decisions.  So we enlisted two terrific research assistants, Justin Nelson and Molly Werhan, to attempt to quantify the case citations.

To arrive at the conclusion that Chevron is the most cited administrative law decision of all time, we checked the citations on Westlaw for every Supreme Court decision cited in the latest edition of Jerry L Mashaw, Richard A Merrill, Peter M Shane, Elizabeth Magill, Mariano-Florentino Cuellar, Nicholas R Parrillo, Administrative Law: The American Public Law System (7th ed. 2014).  Justin and Molly reviewed those cases (over 550) during two weeks in late July and August.  The results for the top ten and then another twenty I thought readers would be most interested in are presented in the following table.

Table 1. Most Cited Supreme Court Adminstrative Law Decisions
Rank Case Name Citation Year Total Citations Cases Secondary Sources
1 Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 1993 104,452 16,400 10,580
2 Harlow v. Fitzgerald 457 U.S. 800 1982 71,223 26,239 2,834
3 Chevron U.S.A., Inc. v. NRDC 467 U.S. 837 1984 67,509 13,482 11,538
4 Kumho Tire Co., Ltd. v. Carmichael 526 U.S. 137 1999 52,765 7,314 3,483
5 Lujan v. Defenders of Wildlife 504 U.S. 555 1992 48,153 13,049 4,609
6 Scheuer v. Rhodes 416 U.S. 232 1974 47,223 22,051 1,116
7 Richardson v. Perales 402 U.S. 389 1971 46,976 34,762 544
8 Erie Railroad Co. v. Tompkins 304 U.S. 64 1938 44,836 16,966 6,811
9 Anderson v. Creighton 483 U.S. 635 1987 42,852 12,922 1,321
10 Saucier v. Katz 533 U.S. 194 2001 41,566 15,440 827
11 INS v. Cardoza-Fonseca 480 U.S. 421 1987 40,075 2,812 2,161
12 Mathews v. Eldridge 424 U.S. 319 1976 37,938 11,289 5,183
23 Marbury v. Madison 5 U.S. 137 1803 22,906 3,777 10,151
29 Lujan v. Nat’l Wildlife Fed’n 497 U.S. 871 1990 21,094 7,470 1,239
30 Citizens to Preserve Overton Park, Inc. v. Volpe 401 U.S. 402 1971 20,379 5,864 2,458
33 Ex Parte Young 209 U.S. 123 1908 19,853 7,153 2,911
37 Goldberg v. Kelly 397 U.S. 254 1970 17,039 4,634 3,484
54 Abbott Labs. v. Gardner 387 U.S. 136 1967 13,087 4,504 1,461
64 Skidmore v. Swift & Co. 323 U.S. 134 1944 11,211 2,751 2,271
68 Vermont Yankee Nuclear Power Corp. v. NRDC 435 U.S. 519 1978 10,686 1,596 1,808
76 United States v. Mead Corp. 533 U.S. 218 2001 9,739 1,769 1,998
82 INS v. Chadha 462 U.S. 919 1983 9,263 1,021 3,673
103 Heckler v. Chaney 470 U.S. 821 1985 7,906 1,496 1,398
107 Auer v. Robbins 519 U.S. 452 1997 7,734 1,426 1,015
115 SEC v. Chenery Corp. (Chenery I) 318 U.S. 80 1943 6,981 2,283 858
134 FDA v. Brown & Williamson Tobacco Corp. 529 U.S. 120 2000 6,118 726 1,261
193 Nat’l Cable & Telcom. Ass’n v. Brand X Internet Servs. 545 U.S. 967 2005 4,295 486 1,082
195 Whitman v. Am. Trucking Ass’ns. 531 U.S. 457 2001 4,237 429 1,383
211 Morrison v. Olson 487 U.S. 654 1988 4,026 417 2,148
* For methodology, see Peter M. Shane & Christopher J. Walker, Foreword—Chevron at 30:  Looking Back and Looking Forward, 83 FORDHAM L. REV. __ [*1 n.2] (2014), http://ssrn.com/abstract=2496532.

As the table illustrates, two cases were cited more than Chevron: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); and Harlow v. Fitzgerald, 457 U.S. 800 (1982).  The next two most cited cases after Chevron were Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999); and Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).  We did not count Daubert (or Kumho) andHarlow as administrative law cases, as Daubert and Kumho deal primarily with expert-witness qualifications and Harlow addresses qualified and absolute immunity.

There are so many fun findings depicted in the table above.  I was somewhat surprised, for instance, by the relatively low citation counts and rankings for Brown & Williamson (134th), Chenery I (115th),Mead (76th), Skidmore (64th), and Vermont Yankee (68th).  Even Marbury v. Madison (23rd) seems a lot lower than I would have guessed.  All of this may suggest a disconnect between what academics write about and what courts and litigants actually care about.  [Insert lots of caveats, including that I’m focusing on total citation counts (including court filings), not controlling for age of case, using a methodology with many, many limitations, etc.]

But, as I noted at the outset, what I find most fascinating is that the second most cited case is Lujan.  It is at least fair to say that lowers courts and litigants seem to care a lot about the Court’s standing jurisprudence—more so than every other administrative law case except Chevron.

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 on the Governing Council for 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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