This post is part of the Administrative Law Bridge Series, which highlights terrific 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.
As regular readers of the blog know, I’m very interested in how Chevron deference plays out on the ground in the federal courts of appeals. Kent Barnett and I spent several years coding eleven years (2003-2013) of all published circuit-court opinions that mention Chevron or Skidmore deference. As for study design, we modeled out approach, with some modifications, on the seminal study by Bill Eskridge and Lauren Baer on Chevron deference at the Supreme Court.
In their leading study concerning agency deference in the Supreme Court from 1984 to 2006, Eskridge and Baer found that the Court applied Chevron deference only one quarter of the time that it would have seemed to apply. When the Court applied the doctrine, agencies prevailed 76.2% of the time, a rate similar to those under other standards of review. Many of the findings from our circuit-court study suggested, with some caveats, that there may be a Chevron Supreme and a Chevron Regular: whereas the choice to apply Chevron deference may not matter that much at the Supreme Court, it seems to matter in the circuit courts. (With Christina Boyd as a coathuor, we’ve more recently written two papers from our dataset that provide a more statistically sophisticated take than the first, largely descriptive paper from the Chevron dataset.)
I was thrilled to discover in SSRN’s U.S. Administrative Law eJournal distribution a new study by Natalie Salmanowitz and Holger Spamann. This study was prepared for the First Annual Replication Conference of the Society for Empirical Legal Studies in April 2018, and it’s a fascinating read. Here’s the paper’s summary, from the SSRN abstract:
William Eskridge and Lauren Baer’s (96 GEO. L. J. 1083 (2008)) “empirical study of all 1014 Supreme Court cases between Chevron and Hamdan in which an agency interpretation of a statute was at issue” finds that “the Court does not apply the Chevron framework in nearly three-quarters of the cases where it would appear applicable.” Our reexamination of this study finds that the fraction of such cases is far lower, and indeed closer to zero. Our main methodological innovation is to infer Chevron applicability from Supreme Court litigants’ briefs rather than our own evaluation of the cases’ facts, as in Eskridge and Baer’s study. In over half the cases flagged by Eskridge and Baer, neither of the parties (nor, where applicable, the Solicitor General as amicus) cited Chevron, and in almost half of the cases within that subset, no one argued for or against deference of any kind. In most of a sample of the remaining cases, the Supreme Court either did not need to reach the Chevron issue, or actually applied it, at least in an abbreviated form.
The findings of this study are reminiscent of Nick Parrillo’s deep historical dive into the rise of the use of legislative history in statutory interpretation in the mid 1940s. Among his key findings, Parrillo concludes that judges began to cite to legislative history in part because lawyers (from the Justice Department and elsewhere) provided such evidence in their briefing. In other words, it turns out that judicial behavior is shaped by lawyering — something #appellatetwitter does not need an empirical study to know as true. (This study also reminds me of the “Litigation Hypothesis” advanced by Diego Zambrano in a paper I remember reading when he was on the entry-level job market last year.)
Salmanowitz and Spamann demonstrate the same is true of Chevron deference at the Supreme Court: Parties’ request for deference (or not) also affects whether judges consider deference in their written opinions. Indeed, as I discussed in a short essay a few years back, sometimes the federal government strategically does not invoke deference doctrines.
[10/9 UPDATE: To clarify, Salmanowitz and Spamann interpret their findings differently than I have just done, in that they posit that the lack of citation to Chevron deference in the briefs is a litigant-independent indicator for whether Chevron applies at all to the case at hand. Perhaps influenced by my short stint on the DOJ civil appellate staff and my longer private-practice experience and continuing participation in regulatory litigation, I tend to infer more strategic litigation tactics at play. To be sure, both are plausible interpretations. Indeed, my guess is this dataset includes instances of both.]
This Salmanowitz and Spamann replication study is an absolute must-read for those interested in Chevron deference and judicial review more generally. Go give the paper a full read here.