Deference Conservation—FOIA's Lessons for a Chevron-Less World

13 Pages Posted: 27 Jul 2018 Last revised: 21 May 2019

Date Written: July 9, 2018


The increasingly real debate in the Judiciary, Congress, and the academy over the future of the Chevron doctrine fails to acknowledge that statutory deference is but one form of deference. This Essay contends that the practical implications Chevron—and relatedly, its abrogation—cannot be understood in isolation. Rather, Chevron exerts a dynamic force on other areas of litigation, demanding that any analysis of its effects consider litigation as a whole. Viewed in this light, this Essay contends that courts engage in deference conservation: where Congress or the Supreme Court forecloses one mode of deference, alternative forms become more pronounced. This Essay supports this contention by looking to FOIA litigation, one of the few areas of administrative law where Congress has demanded de novo review. There, courts have shifted deference to other areas of litigation, including factual and procedural issues, preserving the pre-existing win rate while formally maintaining the de novo standard of review. Due to the common law thrust of its jurisprudential development, APA litigation is highly amenable to deference conservation. Indeed, courts have already responded to discretion increasing, deference reducing measures in ways that mirror their actions in FOIA. The upshot of this realization is that debates over Chevron’s legitimacy should shift from their current statutory focus and towards the quasi-constitutional dimensions that actually underlie deference conservation. Doing so would more accurately assess the rationale surrounding judicial deference, broadening the conversation regarding deference to agencies.

Note: By permission of the Board of Trustees of the Leland Stanford Junior University, from the Stanford Law Review Online at 71 Stan. L. Rev. Online (2018, Forthcoming).

Keywords: chevron, supreme court, administrative law, deference, statutory interpretation, legislation, agency

Suggested Citation

Brinkerhoff Jr., John and Listwa, Daniel, Deference Conservation—FOIA's Lessons for a Chevron-Less World (July 9, 2018). 71 Stanford Law Review Online 146. Available at SSRN:

John Brinkerhoff Jr. (Contact Author)

Yale University - Law School ( email )

Daniel Listwa

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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