Gaming the Chevron Doctrine?

21 Pages Posted: 13 Jun 2017  

Kent H. Barnett

University of Georgia Law School

Christina L. Boyd

University of Georgia - School of Public and International Affairs

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: June 10, 2017

Abstract

Do federal circuit courts consistently apply Chevron deference’s framework when reviewing agency statutory interpretations? Or do political dynamics result in courts gaming the Chevron doctrine? To answer these questions, we empirically analyze circuit-court decisions from 2003 until 2013 that review agency statutory interpretations. Our results — from the largest and most comprehensive database of its kind — confirm longstanding intuition and earlier, more limited studies: courts do not consistently apply Chevron. Our findings, nevertheless, offer some surprising insights into the political dynamics of applying Chevron. When courts reviewed liberal agency interpretations, all panels — liberal, moderate, and conservative — were equally likely to apply Chevron. But when reviewing conservative agency interpretations, liberal panels applied Chevron significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron’s domain.

Keywords: Administrative Law, Deference, Judicial Review, Chevron, Skidmore

Suggested Citation

Barnett, Kent H. and Boyd, Christina L. and Walker, Christopher J., Gaming the Chevron Doctrine? (June 10, 2017). Ohio State Public Law Working Paper No. 400. Available at SSRN: https://ssrn.com/abstract=2984302

Kent Harris Barnett

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

Christina L. Boyd

University of Georgia - School of Public and International Affairs ( email )

Athens, GA 30602-6254
United States

Christopher Jay Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-292-2631 (Phone)

HOME PAGE: http://moritzlaw.osu.edu/faculty/professor/christopher-j-walker/

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