How To Win the Deference Lottery

Abstract

In response to Jud Mathews, Deference Lotteries, 91 Texas Law Review 1349 (2013).

In Deference Lotteries, Jud Mathews proposes that the deference framework in administrative law be viewed through the game theory lens of a lottery. Such an approach helps us think critically about how varying standards of review may affect the behavior of agencies and courts engaged in the judicial review process. This Response suggests that the lottery lens can also help agencies think more strategically about how to develop and defend interpretations of statutes they administer. Assuming the validity of the lottery framework, the Response suggests a playbook for agencies to win the deference lottery. As the playbook reveals, this lottery is not a win-or-go-home contest. Instead, it is a repeated game -- a dialogue of sorts between courts and agencies -- where agencies have multiple opportunities to play and replay (and win). The predictive effect of tightening or loosening the lottery thus may not be as strong as one would hope.

Keywords: administrative law, deference, Chevron, Skidmore, judicial review, game theory, bureaucratic politics