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"Deference" Is Too Confusing – Let's Call Them "Chevron Space" And "Skidmore Weight", Peter L. Strauss Jan 2012

"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" addresses the possibility that an agency ...


Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis Jan 2012

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those ...


Courthouse Iconography And Chayesian Judical Practice, William H. Simon Jan 2012

Courthouse Iconography And Chayesian Judical Practice, William H. Simon

Faculty Scholarship

This contribution to a symposium on Judith Resnik and Dennis Curtis’s Representing Justice considers what courthouse imagery and design might be appropriate for “Chayesian” judicial practice. The imagery and design that Resnik and Curtis examine largely connotes traditional litigation – lawsuits that are bi-polar, retrospective, and self-contained. However, judicial practice is increasingly Chayesian – concerned with forward-looking efforts to coordinate multipolar problems with sprawling party structures. Traditional iconography is inadequate to Chayesian practice because it celebrates equilibrium and communicates information about cases one-by-one. By contrast, Chayesian intervention often induces productive disequilibrium and it can only be made transparent through expression that ...


Litigation Finance: What Do Judges Need To Know?, Bert I. Huang Jan 2012

Litigation Finance: What Do Judges Need To Know?, Bert I. Huang

Faculty Scholarship

The growth of “litigation finance” — the funding of lawsuits by outside investors who are neither parties nor counsel — is being closely watched by academics, the press, and the bar. The practice poses risks of conflicting interests and improper influence; and yet if carefully managed it may in fact enhance party autonomy. What questions, then, should judges be asking when dealing with a case with outside funding? This symposium essay offers judges a starting point: a menu of questions to ask parties who receive such financing. These inquiries aim to pierce simplistic labels such as “loan” or “investment,” in order to ...