Law Commons^™

Derailing The Deference Lockstep, Aaron J. Saiger

Faculty Scholarship

Key voices, most prominently that of Justice Neil Gorsuch, have embraced the position that the Chevron doctrine, under which federal courts defer to an agency’s reasonable interpretation of its organizing statutes, is incompatible with the judicial duty to “say what the law is.” These voices include several state supreme courts, which have held (often citing Justice Gorsuch) that state-court deference to state agency interpretations likewise impinges upon the fundamental duty of state judges to decide, on their own, what state law is.

This Article urges states to resist the uncritical importation into state law of antideference arguments based on the …

The Chevron-Ecuador Dispute, Forum Non Conveniens, And The Problem Of Ex Ante Inadequacy, Howard M. Erichson

Faculty Scholarship

These opening lines from Chevron's website of "facts about Chevron and Texaco in Ecuador" refer to the latest salvo in a long-running environmental dispute concerning a Texaco subsidiary's Ecuadorian oil-drilling activities. Chevron resisted enforcement in the United States of an Ecuadorian court's $18 billion judgment, and the plaintiffs are seeking to enforce the judgment against Chevron in various courts around the world. Chevron's account suggests that the plaintiffs' lawyers are engaged in improper forum-shopping. The plaintiffs'lawyers, according to Chevron, ought to pursue enforcement of the judgment in the United States.

Supreme Court As Interstitial Actor: Justice Ginsburg's Eclectic Approach To Statutory Interpretation Symposium: The Jurisprudence Of Justice Ruth Bader Ginsberg: A Discussion Of Fifteen Years On The U.S. Supreme Court, James J. Brudney

Faculty Scholarship

The Supreme Court is in the midst of an extended debate regarding the proper approach to construing federal statutes. A number of Justices have engaged in heated dialogue addressing the pros and cons of textualism or intentionalism, as well as the virtues and limitations of Chevron deference. Although Justice Ginsburg has not participated in these judicial exchanges, she has adopted her own approach to the challenge of interpreting federal statutes. This Article explores Ginsburg’s approach by focusing on four opinions that construe federal criminal laws and three that interpret labor relations and anti-discrimination laws. The Article’s central thesis is that …

Adjudicative Retroactivity In Administrative Law , Abner S. Greene

Faculty Scholarship

Although decided forty-five years ago, SEC v Cbenery Corp. ("Cbenery II") remains the Supreme Court's leading statement on the issue of retroactivity in administrative adjudication. According to Chenery II, administrative agencies may give meaning to statutory terms through adjudication, even if the rules applied in a particular adjudication have not been previously announced. The Court acknowledged that "announcing and applying a new standard of conduct" in an adjudicative proceeding would have a retroactive effect, but concluded that the agency's duty to be faithful to the "statutory design or to legal and equitable principles" may override concerns about retroactivity. The Court …