This post is part of the Administrative Law Bridge Series, which highlights scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.
Last July Kent Barnett and I posted a draft of the first paper from our years-long coding project of every publish circuit court decision over an eleven-year period that dealt with Chevron deference. That paper is forthcoming in the Michigan Law Review later this year. I blogged about it here, and Dick Pierce reviewed it over at JOTWELL last year.
That paper was largely descriptive, and we’ve since brought on a political scientist coauthor — Christina Boyd — to mine the dataset in a more sophisticated manner. We envision a series of papers from this collaboration, with the second paper from the dataset focusing on how individual judges use Chevron deference. We just posted a draft of this paper — entitled Gaming the Chevron Doctrine? — on SSRN. Here’s a summary of the paper from the abstract:
Do federal circuit courts consistently apply Chevron deference’s framework when reviewing agency statutory interpretations? Or do political dynamics result in courts gaming the Chevron doctrine? To answer these questions, we empirically analyze circuit-court decisions from 2003 until 2013 that review agency statutory interpretations. Our results — from the largest and most comprehensive database of its kind — confirm longstanding intuition and earlier, more limited studies: courts do not consistently apply Chevron. Our findings, nevertheless, offer some surprising insights into the political dynamics of applying Chevron. When courts reviewed liberal agency interpretations, all panels — liberal, moderate, and conservative — were equally likely to apply Chevron. But when reviewing conservative agency interpretations, liberal panels applied Chevron significantly less frequently than conservative panels. Contrary to limited prior studies, we find no evidence of “whistleblower” or disciplining effects when judges of different judicial ideologies comprised the panel. Viewed together, our results provide important implications for the current debate on whether to eliminate, narrow, or clarify Chevron’s domain.
And here is a excerpt from the paper regarding the potential implications of our findings:
Our findings as to liberal judges and conservative agency interpretations, however, suggest that such conservative deregulatory efforts might not fare as well today, especially in a federal judiciary that has become more liberal from eight years of judicial appointments by a Democratic president. If there were whistleblower effects, however, Chevron might still be worth preserving. After all, a Republican president, with a Republican-controlled Senate, should be able to fill the numerous judicial vacancies and thus diversify most circuit court panels with at least one conservative judge. In so doing, under the “whistleblower” theory, this should discipline more liberal panels to apply Chevron deference to conservative agency statutory interpretations. But we find no significant panel effects in the application of Chevron deference.
We do not mean to overstate these implications from our findings. After all, liberal judges still apply Chevron deference to conservative agency statutory interpretations at a somewhat high rate. Conservative agency statutory interpretations, including deregulatory efforts, could fare worse in court without Chevron deference. While our data set includes every published circuit court decision that cites Chevron or Skidmore during the eleven-year time period, it does not include every circuit court review of an agency statutory interpretation during the timeframe. In particular, we did not look at all at unpublished decisions, nor did we evaluate judicial opinions that did not cite Chevron or Skidmore. Although we think it unlikely that judges act strategically in refusing to publish a decision or refusing to cite Chevron and Skidmore, it is a remote possibility.
The draft paper is available here. Especially as this is an early draft, comments are particularly welcome!