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Full-Text Articles in Law
Formalism And Deference In Administration Law, Kristen E. Hickman, Jide O. Nzelibe, Thomas W. Merrill, Philip A. Hamburger, Jennifer Walker Elrod
Formalism And Deference In Administration Law, Kristen E. Hickman, Jide O. Nzelibe, Thomas W. Merrill, Philip A. Hamburger, Jennifer Walker Elrod
Faculty Scholarship
The topic for discussion is formalism and deference in administrative law. As we know, the landmark case of Chevron v. Natural Resources Defense Council has changed the face of modern administrative law. The panel will address the rightness and limitations of Chevron deference, especially in the context of agency decisions on the scope of the agencies’ jurisdictional mandates. Should the federal courts defer, or should they not defer in this context? We need guidance. Justices Scalia and Thomas recently differed from Chief Justice Roberts and Justices Kennedy and Alito on these issues. Who is right, and why? Does the answer …
"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss
"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss
Faculty Scholarship
This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation." Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference." Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight." "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints – that is, its allocated authority. "Skidmore weight" …