February 22, 2008
New Article by one of my Casebook Co-authors
Linda Jellum -- my colleague at Mercer and a great friend -- just had a piece published and has put the published version on ssrn:
Chevron's Demise: A Survey of Chevron from Infancy to Senescence, 59 Admin. L. Rev. 725 (2007)
Abstract: This article explores Chevron's role in statutory interpretation. In Chevron the Supreme Court resolved the question of how much deference courts must give to an agency's interpretation of a statute: first, determine whether Congress had decided the issue; if not, then defer to any reasonable agency interpretation. But Chevron has proved to be less clear, predictable, and simple than originally envisioned. For example, exactly how searching should the inquiry be at the first step? Should a court limit its search to the text of the statute at issue, or should a court look more broadly for Congressional intent? These are different questions. And, more importantly, the answer directly impacts the distribution of lawmaking power among the three branches of government.
This article explores the Court's reformulation of Chevron's first step and ultimately concludes that Chevron's importance is fading: where Chevron's early application knew no bounds, today, Chevron applies less often and is cited by the Court far less frequently. In the end, the Court's reformulation of Chevron's first step has hastened Chevron's demise.
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