End the Failed Chevron Experiment Now: How Chevron Has Failed and Why it Can and Should Be Overruled

73 Pages Posted: 13 Aug 2009 Last revised: 27 Sep 2010

Jack Michael Beermann

Boston University School of Law

Date Written: August 11, 2009

Abstract

In Chevron U.S.A., Inc. v. NRDC, decided in 1984, the Supreme Court announced a startling new approach to judicial review of statutory interpretation by administrative agencies, which requires courts to defer to agency interpretations of ambiguous statutes. Although it was perhaps hoped that Chevron would simplify judicial review and increase deference to agency interpretation, the opposite has occurred. Chevron has complicated judicial review and at best it is uncertain whether it has resulted in increased deference to agency interpretation. In fact, for numerous reasons, Chevron has been a failure on any reasonable measure and should be overruled. Further, overruling Chevron would be consistent with the practice of stare decisis because it is a judge-made rule, has proven unworkable in practice, is inconsistent with a governing statute and has not spawned settled expectations that would be upset if it is overruled. Finally, the Chevron doctrine should be replaced either by reviving, with minor modifications, pre-Chevron practice, or with a slightly modified version of Skidmore deference.

Keywords: administrative law, Chevron, judicial review, statutory interpretation

JEL Classification: K23

Suggested Citation

Beermann, Jack Michael, End the Failed Chevron Experiment Now: How Chevron Has Failed and Why it Can and Should Be Overruled (August 11, 2009). Connecticut Law Review, Vol. 42, No. 3, February 2010; Boston Univ. School of Law Working Paper No. 09-43. Available at SSRN: https://ssrn.com/abstract=1447495 or http://dx.doi.org/10.2139/ssrn.1447495

Jack Michael Beermann (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-2577 (Phone)
617-353-3110 (Fax)

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