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Chevron as a Voting Rule

56 Pages Posted: 5 Jun 2006 Last revised: 15 Nov 2011

Jacob E. Gersen

Harvard University

Adrian Vermeule

Harvard Law School

Date Written: November 14, 2011

Abstract

In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.

Keywords: Chevron, deference, voting, agencies

Suggested Citation

Gersen, Jacob E. and Vermeule, Adrian, Chevron as a Voting Rule (November 14, 2011). Yale Law Journal, Vol. 116, p. 676, 2007; U Chicago Law & Economics, Olin Working Paper No. 293; U of Chicago, Public Law Working Paper No. 129. Available at SSRN: https://ssrn.com/abstract=906633

Jacob Gersen

Harvard University ( email )

1875 Cambridge Street
Cambridge, MA 02138
United States

Adrian Vermeule (Contact Author)

Harvard Law School ( email )

1525 Massachusetts
Griswold 500
Cambridge, MA 02138
United States

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