Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals

60 Pages Posted: 16 Aug 2015

See all articles by Orin S. Kerr

Orin S. Kerr

University of Southern California Gould School of Law

Date Written: 1998

Abstract

The prevalence of the Chevron doctrine in administrative law has prompted widespread scholarly controversy concerning how the doctrine operates in practice. Three descriptive models have emerged. Some commentators have embraced a contextual model and contend that Chevron is a "revolution on paper" that has failed to replace the traditional contextual approach to judicial review of agency action. Others rely on a political model and maintain that the Chevron doctrine is so indeterminate that it serves primarily as cover for judges who decide cases based on their personal political preferences. Other commentators rely on an interpretive model and insist that Chevron is unstable because textualist judges apply the doctrine differently from judges who reject a textualist approach.

This Article presents the results of an empirical study designed to evaluate how accurately the three models describe the Chevron doctrine. By examining the published decisions of the US. Courts of Appeals in 1995 and 1996, the author concludes that the three descriptive models largely fail to predict outcomes in actual controversies. The political model mounts the most effective attack, as the study reveals a significant difference in voting patterns between Republican and Democratic judges in ideologically charged cases. However, the results suggest that the contextual model's ability to predict Chevron results is weak at best, and that the interpretive model's predictions are unsupported The author concludes by offering possible explanations for the divergence between the models' predictions and the reality suggested by the study's results

Keywords: Chevron

JEL Classification: K23

Suggested Citation

Kerr, Orin S., Shedding Light on Chevron: An Empirical Study of the Chevron Doctrine in the U.S. Courts of Appeals (1998). 15 Yale Journal on Regulation 1 (1998). Available at SSRN: https://ssrn.com/abstract=2644677

Orin S. Kerr (Contact Author)

University of Southern California Gould School of Law ( email )

699 Exposition Boulevard
Los Angeles, CA 90089
United States

HOME PAGE: http://gould.usc.edu/faculty/?id=73523

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