Chevron in the Circuit Courts
Kent H. Barnett
University of Georgia Law School
Christopher J. Walker
Ohio State University (OSU) - Michael E. Moritz College of Law
July 12, 2016
Michigan Law Review, Vol. 115, Forthcoming
Ohio State Public Law Working Paper No. 359
UGA Legal Studies Research Paper 2016-27
This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference — the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1558 agency interpretations the circuit courts reviewed from 2003 through 2013 (where they cited Chevron), we found that the circuit courts overall upheld 71% of interpretations and applied Chevron deference 77% of the time. But there was nearly a twenty-five percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among many other findings, our study reveals important differences across circuits, agencies, agency formats, and subject matters as to judicial review of agency statutory interpretations — as our rankings based on these variables illustrate.
Based on prior empirical studies of judicial deference at the Supreme Court, however, our findings suggest that there may be a Chevron Supreme and a Chevron Regular: Whereas Chevron may not have much of an effect on agency outcomes at the Supreme Court, Chevron deference seems to matter in the circuit courts. That there is a Chevron Supreme and a Chevron Regular may suggest that, in Chevron, the Supreme Court has an effective tool to supervise lower courts’ review of agency statutory interpretations. To render Chevron more effective in creating uniformity throughout the circuit courts, the Supreme Court needs to send clearer signals on how courts should apply the deference standard.
Number of Pages in PDF File: 70
Keywords: administrative law, deference, judicial review, Chevron, Skidmore
Date posted: July 13, 2016 ; Last revised: January 11, 2017