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Full-Text Articles in Law
Major Contradictions At The Roberts Court, Edward L. Rubin
Major Contradictions At The Roberts Court, Edward L. Rubin
Vanderbilt Law School Faculty Publications
The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inconsistent with another group of the Court’s opinions, which the authors describe as the Court’s presidentialism.
Their analysis is incisive. While addressed to a Court that has a rather cavalier attitude toward doctrinal coherence, the article’s convincing empirical evidence may encourage the Justices to …
Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers
Brief Of Scholars Of Administrative Law And The Administrative Procedure Act As Amici Curiae In Support Of Respondents, Jeffrey Lubbers
Amicus Briefs
The principle of judicial deference to agency interpretations of law has been a pillar of this Court's administrative law doctrine for more than a century. This Court's decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), formalized one version of that principle, creating the two-step framework that is now subject to a multifaceted attack. Among other things, Chevron's opponents argue that the doctrine is at odds with the original public meaning of the Administrative Procedure Act. This is wrong, and the text and history of that landmark statute provide no basis for …
Chevron'S Ghost Rides Again, Thomas W. Merrill
Chevron'S Ghost Rides Again, Thomas W. Merrill
Faculty Scholarship
Professor Gary Lawson has offered a remarkable account of the fate of the Chevron doctrine during a recent year in the Supreme Court, from August 2021 to June 2022. When one examines lower court decisions, petitions seeking review of those decisions, briefs filed by the parties, and transcripts of oral arguments, Chevron made frequent appearances during the year. But when one reads the published opinions of the Court, one finds virtually no reference to Chevron. Based on the published opinions of the Court, it was as if the Chevron decision did not exist.
The status of Chevron as a …
Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill
Antitrust Rulemaking: The Ftc’S Delegation Deficit, Thomas W. Merrill
Faculty Scholarship
The Federal Trade Commission’s (FTC’s) recent assertion of authority to engage in legislative rulemaking in antitrust matters can be addressed in terms of three frameworks: the major questions doctrine, the Chevron doctrine, and as a matter of ordinary statutory interpretation. The article argues that as a matter of ordinary statutory interpretation the FTC has no such authority. This can be seen by considering the structure and history of the Act and is confirmed by the 1975 Federal Trade Commission Improvements Act. Given that the result follows from ordinary statutory interpretation, it is unnecessary for courts to consider the other two …
The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill
The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill
Faculty Scholarship
The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major question doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.
The Ghosts Of Chevron Present And Future, Gary S. Lawson
The Ghosts Of Chevron Present And Future, Gary S. Lawson
Faculty Scholarship
In the October 2021 term, the Supreme Court decided six cases involving federal agency interpretations of statutes, at least five of which seemingly implicated the Chevron doctrine and several of which explicitly turned on applications of Chevron in the lower courts. But while the Chevron doctrine has dominated federal administrative law for nearly four decades, not a single majority opinion during the term even cited Chevron. Three of those cases formalized the so-called “major questions” doctrine, which functions essentially as an anti-Chevron doctrine by requiring clear congressional statements of authority to justify agency action on matters of great legal and …
Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody
Justice Kavanaugh, Lorenzo V. Sec, And The Post-Kennedy Supreme Court, Matthew C. Turk, Karen E. Woody
Scholarly Articles
This Article analyzes a recent Supreme Court case, Lorenzo v. Securities and Exchange Commission, and explains why it provides a valuable window into the Court's future now that Justice Kennedy has retired and his seat filled by Justice Brett Kavanaugh. Lorenzo is an important case that raises fundamental interpretative questions about the reach of federal securities statutes. But most significant is its unique procedural posture: when the Supreme Court issues its decision on Lorenzo in 2019, Justice Kavanaugh will be recused while the other eight Justices rule on a lower court opinion from the D.C. Circuit in which he wrote …
Major Questions About The "Major Questions" Doctrine, Kevin O. Leske
Major Questions About The "Major Questions" Doctrine, Kevin O. Leske
Faculty Scholarship
No abstract provided.
Making Law Out Of Nothing At All: The Origins Of The Chevron Doctrine, Gary S. Lawson, Stephen Kam
Making Law Out Of Nothing At All: The Origins Of The Chevron Doctrine, Gary S. Lawson, Stephen Kam
Faculty Scholarship
For more than a quarter of a century, federal administrative law has been dominated by the so-called Chevron doctrine, which prescribes judicial deference to many agency interpretations of statutes. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,2 for which the doctrine is named, has become the most cited case in federal administrative law, and indeed in any legal field, 3 and the scholarship on Chevron could fill a small library.4 Love it5 or hate it,6 Chevron virtually defines modern administrative law.
Even after almost thirty years and thousands of recitations, unanswered questions about this Chevron framework abound. Does this …
A Concrete Shoe For Brand X?, David J. Shakow
A Concrete Shoe For Brand X?, David J. Shakow
All Faculty Scholarship
The Supreme Court’s decision in Home Concrete raises new questions about the deference to be given to administrative pronouncements that conflict with prior judicial decisions. Unfortunately, the opinions of a divided Court leave practitioners to puzzle over the boundaries of its decision.
City Of Arlington V. Fcc: Questioning Agency Authority To Determine The Scope Of Its Own Authority, Jonathan H. Adler
City Of Arlington V. Fcc: Questioning Agency Authority To Determine The Scope Of Its Own Authority, Jonathan H. Adler
Faculty Publications
In City of Arlington v. FCC the Supreme Court will consider whether courts should defer to an agency’s determination of its own jurisdiction. Although the need for courts to defer to agency interpretations of ambiguous statutory provisions under Chevron v. NRDC is well-established, the Supreme Court has never decided whether so-called Chevron deference should apply to statutory provisions delineating the scope of agency jurisdiction. There are several reasons courts should not confer Chevron deference to agency interpretations of statutes that define or limit an agency’s jurisdiction. First, the conferral of Chevron deference is premised upon the existence of agency jurisdiction. …
From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts
From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts
Articles
During the past three decades, one Supreme Court justice— John Paul Stevens—has authored two of the most significant administrative law decisions that speak to the judiciary’s role in checking agency interpretations of the statutes that they administer. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Justice Stevens’s landmark 1984 decision unanimously upheld the EPA’s construction of a term found in the Clean Air Act. Subsequently, in Massachusetts v. EPA, Justice Stevens’s 2007 opinion for a five-justice majority handed a major win to global environmental security by ordering the EPA to reconsider its refusal to regulate greenhouse …
An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation, And The Chevron Doctrine In Environmental Law, Jason J. Czarnezki
An Empirical Investigation Of Judicial Decisionmaking, Statutory Interpretation, And The Chevron Doctrine In Environmental Law, Jason J. Czarnezki
Elisabeth Haub School of Law Faculty Publications
How do courts evaluate decisions of statutory interpretation made by government agencies that deal in environmental law? While research on judicial decisionmaking in environmental law has primarily focused on the D.C. Circuit, the Environmental Protection Agency, and the influence of ideology, only recently have legal scholars begun to consider the role of legal factors in judicial decisionmaking in environmental law. With special attention paid to how courts implement the Chevron doctrine, this Article empirically and doctrinally analyzes environmental law cases decided in the United States Courts of Appeals over a three-year period (2003-05) to investigate what factors, including ideological, legal, …
Marbury V. Madison As The First Great Administrative Law Decision, Thomas W. Merrill
Marbury V. Madison As The First Great Administrative Law Decision, Thomas W. Merrill
Faculty Scholarship
Marbury v. Madison is our foremost symbol of judicial power. Not only is the decision regarded as the root of judicial authority to strike down statutes as violating the Constitution; it is also taken to mean that "the federal judiciary is supreme in the exposition of the Constitution." In other words, Marbury has come to stand for the proposition that courts should enforce their own understanding of the meaning of the Constitution, without deferring or even paying much attention to the views of the other branches.
I will not in this essay engage in yet another analysis of Marbury's …
The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill
The Mead Doctrine: Rules And Standards, Meta-Rules And Meta-Standards, Thomas W. Merrill
Faculty Scholarship
United States v. Mead Corp. is the U.S. Supreme Court's most important pronouncement to date about the scope of the Chevron doctrine. According to Justice Scalia's dissenting opinion, Mead is "one of the most significant opinions ever rendered by the Court dealing with the judicial review of administrative action." Justice Scalia also thought that the consequences of "the Mead doctrine," as he called it, "will be enormous, and almost uniformly bad."
Justice Scalia's indictment of Mead was driven by his attachment to rules and dislike of standards. He saw Mead as shifting the practice of deference away from the …
Chevron's Domain, Thomas W. Merrill, Kristin E. Hickman
Chevron's Domain, Thomas W. Merrill, Kristin E. Hickman
Faculty Scholarship
The Supreme Court's decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc. dramatically expanded the circumstances in which courts must defer to agency interpretations of statutes. The idea that deference on questions of law is sometimes required was not new. Prior to Chevron, however, courts were said to have such a duty only when Congress expressly delegates authority to an agency "to define a statutory term or prescribe a method of executing a statutory provision." Outside this narrow context, whether courts would defer to an agency's legal interpretation depended upon multiple factors that courts evaluated in …
Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson
Reconceptualizing Chevron And Discretion: A Comment On Levin And Rubin, Gary S. Lawson
Faculty Scholarship
Professors Ronald Levin and Edward Rubin want to change the way we think about important administrative law concepts. Ronald Levin's paper, The Anatomy of Chevron: Step Two Reconsidered,1 argues that Chevron's2 currently ill-defined second step ought to be reconceptualized as an application of arbitrary or capricious review. Edward Rubin's paper, Discretion and Its Discontents,3 is part of his ongoing project to reconceptualize the way we think-and, more importantly, the way we talk-about the modern administrative state. Professor Rubin suggests that the oft-used word "discretion" does not usefully describe the bureaucratic operation of the modern managerial state and that it profitably …
Pluralism, The Prisoner's Dilemma, And The Behavior Of The Independent Judiciary, Thomas W. Merrill
Pluralism, The Prisoner's Dilemma, And The Behavior Of The Independent Judiciary, Thomas W. Merrill
Faculty Scholarship
Discussions of Thayer's conception of judicial review, as this symposium amply demonstrates, tend to be normative. Professor Nick Zeppos's paper, which offers more of a positive analysis, is therefore a welcome addition. Zeppos's paper includes three especially valuable insights. First, he demonstrates the close parallel between Thayer's theory of judicial review and the Supreme Court's Chevron doctrine. The former would have the judiciary enforce clear constitutional commands but otherwise defer to legislative understandings of constitutional meaning; the latter would have courts enforce clear legislative commands but otherwise defer to administrative interpretations of statutes. Second, he offers evidence that in both …