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SSRN-Chevron as a Canon, not a Precedent: An Empirical Test of what Motivates Judges in Agency Deference Cases by William Eskridge, Connor Raso
Legal scholars almost universally believe that federal judges defer to agency interpretations of statutes. The debate has therefore focused on when judges should defer and how judges should operationalize a deference regime doctrinally. Such normative debates about deference rest upon factual assumptions that have not been rigorously tested; drawing from the entire population of Supreme Court cases (1984-2006) our empirical finds that Supreme Court Justices do not generally afford deference precedents stare decisis effect, but that the policies underlying the major deference regimes do have bite at the Supreme Court level. We also find that judicial ideology affects the Justices’ applications of deference regimes but does not explain why different Justices prefer different doctrinal formulations; we advance the hypothesis that the Justices’ expressed preferences are genuine, but do not dominate ideology and other context based factors in actual cases. Deference regimes are more like canons of statutory construction, applied episodically but reflecting deeper judicial commitments, than binding precedents, pretty faithfully applied or distinguished. Our study suggests that most academic proposals to “reform” deference doctrines would have little or no bite at the Supreme Court level; more modest proposals to clarify such doctrines would probably be (modestly) helpful, however.
SSRN-Democratizing the Administrative State by Richard Pierce
Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Justices seemed to be poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court stepped back from that abyss and took a major step toward legitimating and democratizing the administrative state. The Court instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute. The Court based this doctrine of deference on the superior political accountability of agencies. Henceforth, politically-unaccountable judges were prohibited from substituting their policy preferences for those of politically-accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President. The Court's 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements the deference doctrine the Court announced in 1984 and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court's understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court's present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large c
A Comment on Rosenberg’s New Edition of the Hollow Hope | The Legal Workshop
Gerald Rosenberg’s new edition of The Hollow Hope repeats his earlier book-length argument against the prospects of social reform through law. Complete with tables, charts, and updated statistics, the new edition replies to his critics and extends his analysis to a number of new areas, including same-sex marriage. The new material reinforces his original conclusion that legal rulings fail to spark social progress not already underway.
Gangs of America by Ted Nace - the rise of Corporate Power and the disabling of democracy
Gangs of America describes the expansion of corporate legal empowerment onto the global stage through international agreements such as the North American Free Trade Agreement, which boosted the legal powers of corporations to the level of sovereign nation
The New Yorker > Atticus Finch and Southern liberalism
Malcolm Gladwell takes a critical look at the popular Southern
Stuart Scheingold, Radical Lawyers and Socialist Ideals
Journal of Law and Society, Vol. 15, No. 1 (Spring, 1988), pp. 122-138
Scott Cummings & Ann Southworth, Between Profit and Principle: The Private Public Interest Firm by Scott Cummings, Ann Southworth
This chapter considers the relationship between private practice and the public good through the lens of an under-examined organizational form: the "private public interest law firm." This form of practice attempts to marry profit and principle in organiz
Anthony Paik, John P. Heinz,
37 Law
Racial Romanticism
Civil rights history does not divide neatly into pre-1968 light and post-1968 darkness. A response to Richard Kahlenberg.
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