Deference Asymmetries: Distortions in the Evolution of Regulatory Law

Abstract

Deference asymmetries are unevaluated phenomena in administrative law. These asymmetries occur when an administrative agency’s decision that overly favors its regulated entities is either less likely to be subjected to judicial reexamination, or if it is subjected to judicial challenge, will be afforded a more deferential standard of review than a decision that overly disfavors its regulated entities. Because decisions that are afforded a more deferential standard are more likely to be upheld, deference asymmetries could potentially function as a one-way ratchet, pushing the development of regulatory law in the proregulated-entity direction. In addition to providing a theoretical basis for the bias development of regulatory law that may arise from deference asymmetries, this Article identifies the formal and informal structures in the administrative state that give rise to the skewed application of deference regimes. In doing so, this Article demonstrates that deference asymmetries are not isolated to a few areas of regulation. Rather, a surprising number of agencies that regulate fields ranging from the environment, to patent law, to disability benefits face asymmetric deference with respect to their decision making. Finally, this Article explores the implications of these asymmetries for administrative law.

Keywords: deference regimes, pro-regulated-drift, agency's legal interpretations, Patent and Trademark Office