Law Commons^™

Deference Is Dead, Long Live Chevron, Nathan D. Richardson

Faculty Publications

Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court Justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important.

This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside …

Democracy, Deference, And Compromise: Understanding And Reforming Campaign Finance Jurisprudence, Scott P. Bloomberg

Faculty Publications

In Citizens United, the Supreme Court interpreted the government’s interest in preventing corruption as being limited to preventing quid pro quo—cash-for-votes—corruption. This narrow interpretation drastically circumscribed legislatures’ abilities to regulate the financing of elections, in turn prompting scholars to propose a number of reforms for broadening the government interest in campaign finance cases. These reforms include urging the Court to recognize a new government interest such as political equality, to adopt a broader understanding of corruption, and to be more deferential to legislatures in defining corruption. Building upon that body of scholarship, this Article begins with a descriptive account of …

Auer Evasions, Jonathan Adler

Faculty Publications

Auer v. Robbins requires federal courts to defer to federal agency interpretations of ambiguous regulations. Auer built upon, and arguably expanded, the Court’s long-standing practice of deferring to agency interpretations of their own regulations born in Bowles v. Seminole Rock. Although initially uncontroversial, the doctrine has come under fire from legal commentators and prominent jurists, including Auer’s author, the late Justice Antonin Scalia. As Justice Scalia came to recognize, Auer deference enables agencies to evade a wide range of legal constraints that are otherwise imposed upon agency behavior, the ability of agencies to take action with the force …

An Empirical Examination Of Product And Litigant-Specific Theories For The Divergence Between Nafta Chapter 19 And U.S. Judicial Review, Juscelino F. Colares

Faculty Publications

Empirical analysis of NAFTA panel review has shown that panels reverse US agency trade remedy determinations twice as often as US courts. Recent studies have eliminated case selection and other hypotheses as potential explanations for this divergence. In this article, Probit regressions show that case docket differences, such as type of import or litigant identity, also cannot account for this discrepancy. As NAFTA panels must apply the same law and standards of review as the US courts they replace, this divergence presents serious questions regarding US Congressional acquiescence to the operation of NAFTA panels and encourages discussion of the role …

Politics Of Deference And Inclusion: Toward A Uniform Framework For The Analysis Of ‘Fundamental Alteration’ Under The Ada, Kerri Lynn Stone

Faculty Publications

In 2001, a disabled professional golfer prevailed in his claim to use a golf cart on the PGA Tour in the Supreme Court case of PGA Tour, Inc. v. Martin. While the Americans with Disabilities Act (“ADA”) mandates that essential and reasonable accommodations be made for plaintiffs like Martin, it does not require any actions that would fundamentally alter the nature of a defendant’s “goods, services, facilities, privileges, advantages, or accommodations.” This article surveys federal opinions that undertook the fundamental alteration query posed by Titles II and III of the ADA in the five years since Martin was decided, and …