Administrative Law Commons^™

Retheorizing Precedent, Randy J. Kozel

Journal Articles

Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …

King's Domain, Mila Sohoni

Notre Dame Law Review

In King v. Burwell, the Supreme Court called the tax-credit provision of the Affordable Care Act ambiguous—but then invoked the major questions exception to Chevron deference and proceeded to resolve the provision’s meaning for itself. Litigants and commentators quickly recognized that King had the potential to destabilize Chevron. If King exempts from Chevron deference anything that is “major,” then Chevron’s significance will necessarily be diminished, as agencies will only enjoy deference on their answers to questions of “minor” import; the major questions exception may swallow Chevron’s rule.

This Essay, prepared for a symposium held by the …

Chevron Step Two's Domain, Kent H. Barnett, Christopher J. Walker

Notre Dame Law Review

An increasing number of judges, policymakers, and scholars have advocated eliminating or narrowing Chevron deference—a two-step inquiry under which courts defer to federal agencies’ reasonable interpretations of ambiguous statutes the agencies administer. Much of the debate centers on either Chevron’s domain (i.e., when Chevron should apply at all) or how courts ascertain statutory ambiguity at Chevron’s first step. Largely lost in this debate on constraining agency discretion is the role of Chevron’s second step: whether the agency’s resolution of a statutory ambiguity is reasonable. Drawing on the most comprehensive study of Chevron in the circuit courts, this …

The Ambiguous Ambiguity Inquiry: Seeking To Clarify Judicial Determinations Of Clarity Versus Ambiguity In Statutory Interpretation, Meredith A. Holland

Notre Dame Law Review

This Note will apply Judge Kavanaugh’s proposed mechanism to the interpretation of the Title IX prohibition of discrimination on the basis of sex. Part I discusses recent cases decided by the Roberts Court that demonstrate the difficulties with the current jurisprudential approach to the clarity versus ambiguity determination. Part II explores Judge Kavanaugh’s recent proposal for reducing threshold findings of ambiguity. Part III considers various interpretive methods and applies Judge Kavanaugh’s proposal in the context of Title IX. Finally, this Note concludes that Judge Kavanaugh’s approach, while most dramatically transforming the purposivist approach, also has consequences for the textualist inquiry.

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.

This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole Rock …

Without Deference, Jeffrey Pojanowski

Journal Articles

This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …