Loud and Soft Anti-Chevron Decisions

24 Pages Posted: 19 Sep 2017 Last revised: 24 Sep 2017

See all articles by Michael Kagan

Michael Kagan

University of Nevada, Las Vegas, William S. Boyd School of Law

Date Written: September 17, 2017

Abstract

This essay proposes a methodology for interpreting the Supreme Court’s long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty, after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful methodology, because sometimes justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be discerned, and where these patterns can be explained by a coherent doctrinal theory, there is good reason to use them as a foundation for refining the Chevron doctrine.

Keywords: Administrative Law, Supreme Court

JEL Classification: K23

Suggested Citation

Kagan, Michael, Loud and Soft Anti-Chevron Decisions (September 17, 2017). UNLV William S. Boyd School of Law Legal Studies Research Paper . Available at SSRN: https://ssrn.com/abstract=3038319

Michael Kagan (Contact Author)

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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