On Monday the Fordham Law Review published a symposium entitled Chevron at 30: Looking Back and Looking Forward, which my colleague Peter Shane and I organized to commemorate Chevron‘s thirtieth anniversary. I previously blogged about the Foreword we penned here, and the final version of that Foreword can be found here. To get a full introduction to the symposium, the Foreword is probably the best place to go. But I thought I’d also include a brief overview here of the various contributions, organized around the two core themes that emerged from the symposium.
Chevron at 30 Years: Continued Uncertainty about Scope and Application
Impact of Chevron Outside the Court
7. In “Improving Agencies’ Preemption Expertise with Chevmore Codification,” Kent Barnett explores the new development in congressional drafting of codifying a judicial review standard less deferential than the Chevron default. In particular, the Dodd-Frank Wall Street Reform and Consumer Protection Act instructs courts to apply Skidmore deference to preemption decisions by the Office of the Comptroller of the Currency. Professor Barnett argues that such Chevmore codification is a welcome development because, among other things, it should encourage agencies to develop expertise and solicit feedback from experts outside the agency.
8. In “What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation,” Abbe Gluckassembles the various lessons that Chevron offers for statutory interpretation more generally. Among other things, she draws on the pathbreaking empirical study she conducted with Lisa Bressman of congressional drafters to provide insights into how statutory interpretation should be conducted.
9. In “Chevron’s Generality Principles,” Emily Hammond explores Chevron’s role in legitimizing administrative governance by looking at contexts outside of judicial review of agency statutory interpretation. Based on the rationales utilized in these contexts, she offers three metrics for measuring the legitimacy of agency action that is either unreviewable or rarely reviewable: (1) whether the agency acts within its scope of statutory authority, (2) exercising its expertise to provide uniformity in law (3) with sufficient procedures in place. Although based on Chevron, these legitimizing metrics sound a lot more like the Skidmore factors.