Against Chevron - a 'Modest Proposal'
Posted: 22 Aug 2004
Convinced that the endless permutations and subtleties of the Chevron doctrine - so beloved by the professoriat - produce little but confusion for students, practitioners and judges, the author suggests a short amendment to section 706 of the Administrative Procedure Act to put the difficult problem of weighting agency legal interpretations on a sounder and more predictable footing. Shifting sharply from a formal to a more functional approach, the amendment would represent a legislative instruction to the court to defer to agency legal interpretations (no matter their form) to the extent there is a plausible empirical showing that the conditions for deference are present. The conditions listed in the amendment (and proposals to add other empirical conditions are invited) include considerations of the authority of the agency's interpretation, what it owes to special agency technical or political resources, how carefully it was produced, and whether there has been a showing of the need for an independent judicial voice on the question.
Keywords: Judicial deference to agency legal interpretations, Chevron doctrine
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