Law Commons^™

Adapting To Administrative Law's Erie Doctrine, Kathryn A. Watts

Articles

This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts …

Against Chevron - A Modest Proposal, William R. Andersen

Articles

This Article proposes a short amendment to § 706 of the Administrative Procedure Act (APA), which is intended to effectively abolish the Chevron doctrine. The solution will not end all debate on these important issues. It will, however, put the decisions and discussions on a sounder basis, leading to improved decisions and more predictability. The proposal is based on three principles whose validity cannot seriously be questioned.

First, the Rule of Law requires that professionals attend seriously to doctrinal sets marked by bewildering inconsistency and its resulting unpredictability. Whatever components one includes in the concept of Rule of Law, surely …