Without Deference

Missouri Law Review, Vol. 81, p. 1075, 2017

Notre Dame Law School Legal Studies Research Paper No. 1618

20 Pages Posted: 8 Jul 2016 Last revised: 24 Feb 2017

Jeffrey A. Pojanowski

Notre Dame Law School

Date Written: January 12, 2017

Abstract

This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this orientation may also shed light on the rise and (partial) fall of Chevron in administrative legal thought.

Keywords: Administrative Law, Judicial Review, Statutory Interpretation, Deference, Chevron

JEL Classification: K10, K20, K23

Suggested Citation

Pojanowski, Jeffrey A., Without Deference (January 12, 2017). Notre Dame Law School Legal Studies Research Paper No. 1618. Available at SSRN: https://ssrn.com/abstract=2806435

Jeffrey A. Pojanowski (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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