Notice & Comment

FedSoc Teleforum Tomorrow (Thurs) 3PM on Chevron Deference in the Circuit Courts

[10/31 Update: Apparently we had ninety people on the live teleforum about our study. The Federalist Society has kindly turned the teleforum into a podcast, which is available here. The paper will not be published until next summer, so comments are particularly welcome.]

The Federalist Society’s Administrative Law and Regulation Practice Group has graciously organized a teleforum to discuss the findings of Kent Barnett and my new study on the role of administrative law’s deference doctrines in the federal courts of appeals. The first paper from this study, entitled Chevron in the Circuit Courts, is forthcoming in the Michigan Law Review next year.

The one-hour teleforum will take place tomorrow, Thursday, October 27, 2016, at 3PM eastern.  If you’re a Federalist Society member, you should have already have received an email with the call-in number.  If you didn’t or if you’re not a member and want to participate in the teleforum, shoot me an email and I’ll share the number.

Here’s a description of the teleforum from the Federalist Society’s website:

Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of judicial deference administrative agencies receive when interpreting statues. Kent Barnett of the University of Georgia Law School and Christopher Walker of Ohio State’s Moritz College of Law have authored a law review article entitled Chevron in the Circuit Courts that empirically examines the effect of so-called Chevron, and its weaker cousin Skidmore, deference on cases heard by the federal intermediate appellate courts. Their article features circuit and agency-specific data on when and where Chevron really matters.  Stephen Vaden will moderate a discussion with the papers’ authors in a teleforum that should be of interest to both administrative law practitioners and those engaged in the debate over the size and role of the administrative state.

The full draft of the paper is available here, and here’s the abstract:

This Article presents findings from the most comprehensive empirical study to date on how the federal courts of appeals have applied Chevron deference—the doctrine under which courts defer to a federal agency’s reasonable interpretation of an ambiguous statute that it administers. Based on 1561 agency interpretations the circuit courts reviewed from 2003 through 2013, we found that the circuit courts overall upheld 71% of interpretations and applied Chevron deference 75% of the time. But there was nearly a twenty-five percentage-point difference in agency-win rates when the circuit courts applied Chevron deference than when they did not. Among many other findings, our study reveals important differences across circuits, agencies, agency formats, and subject matters as to judicial review of agency statutory interpretations — as our rankings based on these variables illustrate.

Based on prior empirical studies of judicial deference at the Supreme Court, however, our findings suggest that there may be a Chevron Supreme and a Chevron Regular: Whereas Chevron may not have much of an effect on agency outcomes at the Supreme Court, Chevron deference seems to matter in the circuit courts. That there is a Chevron Supreme and a Chevron Regular may suggest that, in Chevron, the Supreme Court has an effective tool to supervise lower courts’ review of agency statutory interpretations.

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