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Three Faces of Deference


Paul Horwitz


University of Alabama School of Law


Notre Dame Law Review, Vol. 83, 2008
U of Alabama Public Law Research Paper No. 1018969

Abstract:     
Deference - the substitution by a decision maker of someone else's judgment for its own - is a pervasive tool of constitutional doctrine. But although it has been studied at more abstract levels of jurisprudence and at very specific doctrinal levels, it has received surprisingly little general attention in constitutional scholarship. This Article aims to fill that gap.

This Article makes three primary contributions to the literature. First, it provides a careful examination of deference as a doctrinal tool in constitutional law, and offers a taxonomy of deference. In particular, it suggests that deference can best be understood as relying on two separate but overlapping grounds: deference on the basis of the legal authority of the deferee, and deference on the basis of the deferee's epistemic, or knowledge-based, authority. Importantly, this Article suggests that deference cannot be examined from the standpoint of the deferring institution - usually, the courts - alone. Rather, we must also consider the obligations of deferees, which should invoke deference only for those decisions reached in the full and fair exercise of their legal or epistemic authority.

Second, the Article demonstrates the practical benefits of this richer understanding of deference by applying it to a recent case in which the Supreme Court confronted competing claims of deference: Rumsfeld v. Forum for Academic and Institutional Rights ("FAIR"), in which the Supreme Court rejected a challenge to the Solomon Amendment, which requires law schools to provide access to campus for military recruiters. In FAIR, the Court faced claims of deference from Congress, acting pursuant to its military powers, and from the law schools, which invoked deference both as expressive associations and as universities. The Court's treatment of these competing claims to deference was unsatisfactory. The Court gave too much deference to Congress, and too little to the law schools. In particular, it failed to accord them the deference they deserved as universities, which serve as vital "First Amendment institutions" in the universe of public discourse. The Court's failure to soundly address these competing claims of deference bespeaks a larger failure to theorize the nature of deference and the occasions on which courts should defer. Thus underequipped, the Court was left at sea when confronting multiple institutions competing for deference in the same case. At the same time, the law schools themselves may have fallen short in meeting their own obligations as deferees.

Finally, the Article shows that its examination of deference, and of universities as First Amendment institutions, lies at the intersection of two developing areas of constitutional scholarship: the study of constitutional decision rules, and the study of institutionally oriented approaches to the First Amendment. It argues that these two emerging fields are linked by the concept of deference, and might learn a good deal from each other.

Number of Pages in PDF File: 104

Keywords: deference, First Amendment, institutions, FAIR, Rumsfeld, Solomon Amendment, Grutter, Dale, academic freedom

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Date posted: October 3, 2007  

Suggested Citation

Horwitz, Paul, Three Faces of Deference. Notre Dame Law Review, Vol. 83, 2008; U of Alabama Public Law Research Paper No. 1018969. Available at SSRN: http://ssrn.com/abstract=1018969

Contact Information

Paul Horwitz (Contact Author)
University of Alabama School of Law ( email )
P.O. Box 870382
Tuscaloosa, AL 35487
United States
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