In Search of the 'Modern' Skidmore Standard

88 Pages Posted: 3 Jul 2007 Last revised: 14 Dec 2007

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Matthew D. Krueger

Government of the United States of America

Abstract

This Article offers a comprehensive examination of the Skidmore standard for judicial review of agency legal interpretations as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. First, the Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. In the study, we evaluate two competing conceptions of Skidmore review - the independent judgment model and the theoretically more deferential sliding-scale model - and conclude that the appellate courts overwhelmingly follow the sliding scale approach. Also, contrary to two other, significantly more limited studies, we document that Skidmore review is highly deferential to agency interpretations of law, with agency interpretations prevailing in more than 60% of Skidmore applications. Drawing from the Skidmore applications studied, we then analyze more qualitatively how the appellate courts apply the Skidmore review standard as a sliding scale and identify where those courts are struggling to make sense of Skidmore's dictates within that model. To resolve the lower courts' difficulties, we propose re-conceptualizing Skidmore's sliding scale as balancing comparative agency expertise against the potential for agency arbitrariness. Finally, we note several burgeoning issues concerning the scope of Skidmore's applicability and offer preliminary thoughts for addressing those questions.

Keywords: skidmore, chevron, christensen, mead, judicial review, agencies, deference, judicial deference

JEL Classification: K00, K10, K19, K20, K23, K29, K30, K39, K40, K49

Suggested Citation

Hickman, Kristin E. and Krueger, Matthew D., In Search of the 'Modern' Skidmore Standard. Columbia Law Review, Vol. 108, 2007; Minnesota Legal Studies Research Paper No. 07-33. Available at SSRN: https://ssrn.com/abstract=997321

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

Matthew D. Krueger

Government of the United States of America ( email )

Washington, DC 20551
United States

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