On the Borderlands of Chevron's Empire: An Essay on Title VII, Agency Procedures and Priorities, and the Power of Judicial Review

133 Pages Posted: 26 Feb 2010 Last revised: 13 Nov 2015

See all articles by Barry Sullivan

Barry Sullivan

Loyola University Chicago School of Law

Date Written: 2002


In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court announced a now-familiar two-step test for determining whether the court should defer to an agency's administrative interpretation of its organic statute or of other statutes which it is tasked with enforcing. Step two of the Chevron test - determining whether the agency's interpretation of the statute is "reasonable" - is thought to have created a default rule favoring strong deference. More generally, the Chevron two-step approach is thought to have replaced a more pragmatic, contextual set of inquiries with a more systematic and disciplined mode of inquiry, and, theoretically, to have worked a quiet revolution in the law relating to judicial review of agency action. The actual application and significance of Chevron has become a central and hotly contested issue within the Court, as well as a major focus of legal scholarship and criticism. The present article seeks to illuminate that issue in a somewhat different way by looking at one long-unresolved question of Title VII law and evaluating how the courts have sought to resolve that question prior to Chevron, under Chevron, and under various refinements and permutations of Chevron.

This article attempts to provide a window for viewing the presumed connections between the concerns of high theory and the work of the courts in practice, as illustrated by a series of cases culminating in the District of Columbia Circuit's decision in Martini v. Federal National Mortgage Association, in which the court invalidated a longstanding EEOC rule concerning the issuance of "early" right to sue letters. Part II of this essay briefly considers the general context and contribution of the Chevron analysis. Part III describes the statutory and regulatory background of the "early" right-to-sue letter problem. Part IV examines the case law concerning early right-to sue letters and compares the approaches taken before and after Chevron. Part V attempts to draw some broader conclusions from the present analysis of the courts' treatment of this narrow and discrete issue.

Keywords: Administrative Law, Statutory Interpretation, Judicial Review, Right-To-Sue Letters

JEL Classification: J71, K23, K31

Suggested Citation

Sullivan, Barry, On the Borderlands of Chevron's Empire: An Essay on Title VII, Agency Procedures and Priorities, and the Power of Judicial Review (2002). Louisiana Law Review, Vol. 62, No. 2, pp. 317-448, Winter 2002, Available at SSRN: https://ssrn.com/abstract=1558021

Barry Sullivan (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States

HOME PAGE: http://www.luc.edu/law/faculty/sullivan.html

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