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Without Deference, Jeffrey A. Pojanowski
Without Deference, Jeffrey A. Pojanowski
Missouri Law Review
I argue that such an alternative regime has appealing features but may not bring as much practical change as casual critiques or defenses of Chevron contemplate, at least immediately. The more immediate change would arise at the level of theory and rhetoric, which, in turn, may lead to greater practical changes in the longer run. The theoretical presuppositions underwriting a regime of non-deferential review are far more classical in cast than the moderate legal realism underwriting Chevron. Rejecting deference, therefore, would change how courts talk about the difference between law and policy in the administrative state. The resurrection of the …
Toward A Context-Specific Chevron Deference, Christopher J. Walker
Toward A Context-Specific Chevron Deference, Christopher J. Walker
Missouri Law Review
With Justice Scalia’s passing, the Supreme Court is less likely to consider overturning the administrative law doctrines affording deference to agency statutory interpretations (Chevron deference) or agency regulatory interpretations (Auer deference). Without Justice Scalia on the Court, however, a different kind of narrowing becomes more likely. The Court may well embrace Chief Justice Roberts’s context-specific Chevron doctrine, as articulated in his dissent in City of Arlington v. FCC and his opinion for the Court in King v. Burwell. This Article, which is part of a symposium on the future of the administrative state, explores the Chief Justice’s more limited approach …