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Abstract:
It is often said that the legitimacy of the administrative state depends upon the availability of judicial review of agency action. The legitimacy of judicial review depends, however, upon the proposition that reviewing judges honestly seek to apply neutral legal principles, rather than pursuing their own personal ideological agendas. Charges that judicial ideology determines outcomes are not uncommon. In a recent exchange, Judge Harry Edwards severely criticized Professor Richard Revesz? conclusion that judges on the District of Columbia Circuit engage in "a strategically ideological approach to voting" in deciding cases involving environmental regulation.

This article takes a new empirical approach to examining the effects of political ideology on judicial decisions. Rather than characterizing an entire decision as a win or loss for industrial or environmental interests, this article considers the outcome for each issue decided in each case. The result should be a far more accurate picture of the role of ideology in judicial decisions.

Examining all remands of EPA rules by the D.C. Circuit from July 1, 1985 through June 30, 1995, the article concludes generally that the data do not support charges of significant ideological voting in contests between industry and environmentalist interests. On the other hand, the article concludes that Democratically appointed judges tended to favor the agency, while Republican appointees tended to favor private actors. On the whole, the article concludes that the data provide "a picture of careful judging, without the strong ideological influences that have been predicted in other studies."

Abstract:
This article reports the results of an examination of the effects of a decade's worth of D.C. Circuit remands of informal rules under the "hard look" doctrine. The research identified 71 such remands. Of those, 34 are characterized for a variety of reasons as having essentially no impact on the agency's ability to achieve its goals through the informal rulemaking process. The reasons include the court's explicit refusal to vacate the rule, the court's willingness to delay imposition of the mandate until the agency had recovered, and the insignificant nature of the remand itself.

The author examined the aftermath of the remaining 37 remands to determine whether and to what extent the agency was able to recover. The results show that agencies usually succeed in achieving their regulatory goals through informal rulemaking.

The author argues that these results challenge the ossification critique of hard look review, at least to the extent that the critique asserts that hard look review significantly interferes with agency pursuit of regulatory goals through informal rulemaking. He suggests that the real story of agency reliance upon informal rulemaking is one of substantial success despite hard look review, and that we should consider returning to a cooperative partnership model to characterize the agency-court relationship with respect to arbitrary and capricious review of agency rules.

Abstract:
Well before the end of its second decade, Chevron doctrine is beginning to crumble. Chevron identified statutory ambiguity as the basis for applying a deferential standard of review to agency interpretations. Whatever its limitations, this principle was relatively clear. Gone were the multi-factor analyses of the pre-Chevron era. If the statute was ambiguous (a considerable battleground in itself), the court was to defer to agency authority. Put another way, a court had to find clarity in the statute in order to maintain control and avoid the limitations of the strong deference of Chevron Step 2.

This relatively clear delineation of authority began to blur over the last few years. First, Christensen v. Harris County confirmed that mere interpretive statements are not entitled to Chevron deference, only to respect. More important, U.S. v. Mead injected considerable uncertainty into Chevron analysis by holding that the availability of Chevron deference is a matter of legislative intent, to be determined, as Justice Scalia put it in dissent, by considering 'the totality of the circumstances.'

This article examines the development of Chevron doctrine during the Court's 2001-2002 term. Based largely upon Barnhart v. Walton and Utah v. Evans, Professor Jordan argues that the Court appears to be returning to its prior use of a multi-factor test to determine whether Chevron deference is available in a particular case. Some factors used by the Court seem relevant to a determination of whether Congress intended to delegate the particular decision to the agency. This would, at least, be consistent with the delegation theory that underlies Chevron doctrine. Other factors, however, do not appear relevant to whether Congress intended a delegation. They are comparable to the factors that have long been relevant under Skidmore analysis, which is a matter of respect, not delegation.

Professor Jordan also discerns a trend away from Chevron analysis as a distinct form of deference. He argues that statements in Utah v. Evans and Edelman v. Lynchburg College, on particular, suggest that a majority of the Court may no longer recognize Chevron's clear delineation between administrative and judicial authority. If Chevron represents only 'an additional, separate legal reason for deferring to certain agency determinations' it may devolve into merely another justification for a judicial decision, rather than a requirement to respect agency authority.

Chevron, Skidmore, Mead, Barnhart, deference

Abstract:
Section 554(a) of the Administrative Procedure Act provides that if a statute requires an agency an adjudicatory decision "to be determined on the record after opportunity for agency hearing," that hearing will be subject to various requirements, including the use of an independent Administrative Law Judge, separation of the functions of investigation/prosecution and decision, and a prohibition on ex parte contacts. The courts of appeals have reached three distinct positions with respect to the question of when a statutory hearing requirement triggers 554(a) of the APA. First, the First Circuit articulated a presumption that, for adjudications, a statutory hearing provision requires APA formal adjudication unless Congress has indicated the contrary. Second, the Seventh Circuit articulated the opposite presumption. Third, the D.C. Circuit and the First Circuit held that an agency's interpretation of such a hearing provision qualifies for Chevron deference.

Professor Jordan argues that Chevron deference should not apply to these decisions because Congress would not have intended the courts to defer to an agency's decision to avoid the requirements of formal adjudication. He suggests that the courts should recognize a presumption that Chevron deference does not apply to an agency's decision applying 554(a) to a particular statutory hearing requirement.

After the necessary background, his argument proceeds in two steps. First, he examines precisely what is at stake in the 554(a) trigger decision. He demonstrates that courts, agencies, and commentators have been trapped in an analogy that treats APA hearings like civil trials, creating much concern about the burdens, delays, and costs of such proceedings. Professor Jordan shows that these concerns have been vastly overstated. APA 554, 556, and 557 do not require trial-type procedure. They require the use of an independent ALJ and prohibit ex parte contacts and combination of functions. Beyond those essentials, the agency has vast discretion to control the mechanics of the hearing, from authorizing trial-type litigation to requiring much more informal and efficient process, subject to the requirement to allow cross-examination only "as may be required for a full and true disclosure of the facts." Thus, what is truly at stake in deciding whether formal adjudication requirements have been triggered is whether the legitimacy and fairness of the proceeding will be protected by the three core limitations on agency power.

Second, Professor Jordan demonstrates that the APA Congress would not have intended judicial deference to this crucial procedural decision. He first establishes that the availability of Chevron deference depends upon congressional intent in the particular circumstances. He then traces the history of the struggle over agency power from 1929 to 1946, showing that the one thing all sides agreed upon was the need for independence, impartiality, and fairness as ultimately embodied in 554, 556, and 557 of the APA. In 554(a), Congress left the actual decision about the nature and availability of a particular hearing to a later enactment, but Congress would not have intended judicial deference to an agency's decision that it was not bound by the core legitimizing provisions of the APA. Post-APA developments support that conclusion.

Abstract:
Professor Jordan critiques the Supreme Court's decision in U.S. v. Mead. Likening Mead to the addition of several steps to the existing, relatively simple, Chevron dance, Professor Jordan argues that Mead has considerably complicated judicial review of agency statutory interpretations. He suggests that it will take several years before we understand the full impact of U.S. v. Mead.

Abstract:
Professor Jordan critiques the D.C. Circuit's decision in Envirocare v. NRC, 33 ELR 10597 (August 2000), in which the court upheld the NRC's refusal to allow a company to intervene in a licensing proceeding involving the company's competitors. He argues that Envirocare makes two important contributions, the first positive, the second negative. First, the decision confirms that the standards governing intervention in administrative proceedings are not the same as those governing intervention in court. In light of the need for administrative efficiency, Professor Jordan finds this a positive development. Second, however, the decision applies Chevron deference to the agency's interpretation of its statutory hearing obligations. Professor Jordan criticizes this aspect of the decision as undermining the legitimacy of agency decisionmaking by allowing the agency to control who is able to participate in its proceedings.

Abstract:
Professor Jordan examined Justice Souter's decisions on the New Hampshire Supreme Court in an attempt to discern his likely approach to statutory interpretation. Professor Jordan found that Justice Souter had been something of a textualist, faithful to stare decisis, and comfortable with traditional canons of construction. He suggests that Justice Souter might join Justice Scalia in rejecting reliance upon nontextual legislative history and that he might not consider restrictions on individual freedom to be as significant as restrictions upon states' rights.

Abstract:
Professor Jordan addresses the question of whether English practice in statutory interpretation can be used to support the proposition that American courts should not consider legislative history. He demonstrates first that the English courts have long considered extrinsic materials quite comparable to American legislative committee reports. He also argues that the social, political, and legal systems of the two countries are so different that it is misleading to suggest that American courts should be guided by English practices to the extent that they limit consideration of legislative history.

Abstract:
In this brief essay, Professor Jordan argues that the Supreme Court missed the boat in both Christensen v. Harris County and U.S. v. Mead. In both decisions, the Court held that certain agency statutory interpretations qualify for Chevron deference, while others are to be reviewed under the principles of Skidmore v.Swift and Co. Christensen held that informal agency statements such as opinion letters qualify only for Skidmore review. Mead held that Chevron deference applies only when the agency has been delegated the authority to make rules with the force of law and has issued its interpretation in the exercise of that authority.

Professor Jordan argues that Christensen will result in the same interpretive issue being decided by the courts in some instances and by agencies in other circumstances, depending upon the format in which the agency stated the interpretation under review. Thus, the courts will sometimes decide questions of statutory interpretation that have been delegated to a federal agency. This creates a tension between the branches and considerable confusion about the status of interpretations initially reached by courts. Professor Jordan then argues that Mead further complicates matters by creating an amorphous test that will generate a great deal of litigation without any discernable benefit.

Professor Jordan suggests an alternative approach that avoids any need to choose between Chevron and Skidmore. Drawing upon arguments that Chevron Step 2 review is comparable or equivalent to arbitrary and capricious review, he suggests that Step 2 review itself would inherently distinguish among various types of agency decisions. The more formal the decision, the greater the authority of the agency office issuing the interpretation, the more likely it is that the interpretation would be supported by a well-reasoned explanation. The less formal the decision, the lower its source in the agency hierarchy, the less likely there will be a well-reasoned explanation that could pass review in the nature of the "hard look" test under the arbitrary and capricious standard. Thus, he argues, there is no need to draw fine and difficult distinctions between different types of agency interpretations. Active review under Chevron Step 2 would do the job.

Chirstensen,Chevron, Mead