Law Commons^™

Preserving Fairness In Tax Administration In The Mayo Era, Steve R. Johnson

Scholarly Publications

One of the dominant themes in contemporary federal taxation is bringing tax administration within the fold of general administrative law. In 2011, the United States Supreme Court unambiguously embraced this movement in the landmark case Mayo Foundation for Medical Education & Research v. United States, in which the Court held that challenges to the validity of Treasury regulations generally are governed by the Chevron standard to the same extent as are regulations issued by other administrative agencies.

There was an immediate and strong hostile reaction to Mayo in tax circles. Many fear that Mayo dramatically tips the balance in favor …

Making Law Out Of Nothing At All: The Origins Of The Chevron Doctrine, Gary Lawson, Stephen Kam

Gary Lawson

Chevron, U.S.A., Inc. v. NRDC has become the most cited case in administrative law - and one of the most cited cases in any field -- by virtue of its now famous "two-step" approach to judicial review of agency legal determinations. It is becoming conventional wisdom, and correctly so, that the Chevron doctrine owes relatively little to the Chevron decision. Yet cases and scholars continue to justify operational features of the Chevron doctrine by reference to the Chevron decision. In an effort to uproot this unproductive enterprise, we trace in detail, we believe for the first time, the precise process …

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …

Standing As Channeling In The Administrative Age, Dru Stevenson, Sonny Eckhart

Dru Stevenson

For several decades, courts have approached citizen suits with judicially created rules for standing. These requirements for standing have been vague and unworkable, and often serve merely as a screening mechanism for docket management. The use of standing rules to screen cases, in turn, yields inconsistent decisions and tribunal splits along partisan lines, suggesting that courts are using these rules in citizen suits as a proxy for the merits. Numerous commentators, and some Supreme Court Justices, have therefore suggested that Congress could, or should, provide legislative guidelines for standing. This Article takes the suggestion a step further, and argues that …

Texas Versus Federal Law On Deference To Administrative Interpretations Of Statutes, Scott A. Keller

Scott A Keller

The growth of the administrative state in recent decades means that the issue of deference to an agency’s interpretation of a statute it enforces arises in many contexts. As the issue of agency deference pervades Texas’s legal system, courts and litigants will need to understand when agency statutory interpretations merit deference.

As this article shows, Texas’s doctrine on deference to agency statutory interpretations is not as developed as the federal doctrine. However, the Texas Supreme Court in Railroad Commission of Texas v. Texas Citizens for a Safe Future and Clean Water recently began to develop a comprehensive doctrine on deference …

I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett

Richmond Journal of Law & Technology

Bad facts make bad law. The Supreme Court recently addressed the issue of what constitutes the appropriate standard of proof for invalidating an issued patent. The Patent Act provides a presumption of patent validity. Therefore, a party challenging a patent’s validity bears the burden of overcoming this presumption. However, the Patent Act is silent as to the standard of proof required to satisfy this burden. Despite the Act’s silence, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) has consistently held that the Patent Act’s presumption of validity can only be overcome by a showing of clear and …

The Chevron Two-Step In Georgia's Administrative Law, David E. Shipley

Georgia Law Review

Like federal and state administrative agencies
throughout the nation, Georgia's many boards,
commissions and authorities make policy when they apply
their governing statutes in promulgating regulations and
in ruling on specific matters like granting or denying an
application for a permit or determining the residency of a
candidate for public office. Sometimes governing statutes
are clear, but sometimes there is ambiguity. When there is
ambiguity in the governing statute, an agency must
interpret that legislation when it promulgates regulations
or decides a particular contested matter. This Article asks
and answers the fundamental question of what deference,
if any, must a …

Chevron, Greenwashing, And The Myth Of 'Green Oil Companies', Miriam A. Cherry, Judd F. Sneirson

All Faculty Scholarship

As green business practices grow in popularity, so does the temptation to “greenwash” one’s business to appear more environmentally and socially responsible than it actually is. We examined this phenomenon in an earlier paper, using BP and the Deepwater Horizon catastrophe as a case study and developing a framework for policing dubious claims of corporate social responsibility. This Article revisits these issues focusing on Chevron, an oil company that claims in its advertisements to care deeply about the environment and the communities in which it operates, even as it faces an $18 billion judgment for polluting the Ecuadorean Amazon and …

Not So Special After All: How Mayo Granted The Treasury Unfettered Rule-Making Discretion, Daniel W. Graves

Missouri Law Review

On January 11, 2011, the Supreme Court decided Mayo Foundation for Medical Education and Research v. United States, in which it definitively settled on the more deferential Chevron standard for analyzing Treasury Department regulations, finding no justification in treating them differently from regulations of other agencies. In doing so, the Court has given the Treasury Department virtually free rein in crafting new regulations and amending those regulations already in existence. Because taxpayer lawsuits were one of the few ways in which Treasury regulations could be overturned, by instructing the lower to give such regulations the heightened degree of deference that …

"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" …

The Chevron Two-Step In Georgia's Administrative Law, David Shipley

Scholarly Works

The Georgia Supreme Court and Court of Appeals have long accepted the General Assembly’s authority to enact legislation that establishes administrative agencies and empowers those agencies to promulgate rules and regulations to implement their enabling statutes. In addition, the Georgia Constitution provides that the General Assembly may authorize agencies to exercise quasi-judicial powers. Administrative agencies with broad powers enjoy a secure position under Georgia law.

Like federal and state administrative agencies throughout the nation, Georgia’s many boards, commissions and authorities make policy when they apply their governing statutes in promulgating regulations of general applicability, and in ruling on specific matters …