The New Chevron Skeptics (and AALS AdLaw Recap)
As I previewed here, the Association of American Law Schools (AALS) held its annual meeting in New York City last week, and there were a number of terrific panels and events on administrative law and regulation.
I loved the AALS AdLaw Section’s panel on the regulatory/compliance curriculum as well as its annual New Voices Program—where my co-blogger and collaborator Aaron Nielson and I received terrific feedback from Gillian Metzger, Mark Seidenfeld, and Peter Strauss, among others, on the follow-up piece to The New Qualified Immunity, which should be published in the Southern California Law Review any day now.
The ABA AdLaw’s event on regulating the sharing economy was also awesome, with a lively discussion with representatives from the NYC taxi industry and Uber. And I so enjoyed participating in the AALS Immigration Section’s panel Is Immigration Law Administrative Law. Kit Johnson has a nice summary of the panel over at the ImmigrationProf Blog here, and the panelists plan on doing series of posts on the subject on this blog in February.
The highlight for me, though, was the AALS panel entitled The New Chevron Skeptics, which was organized by the Federalist Society. Here’s a rundown of the panelists and description of the program (pasting from the program brochure):
Moderator: Prof. John McGinnis, Northwestern University School of Law
Prof. Michael Herz, Yeshiva University Benjamin N. Cardozo School of Law
Prof. Jeffrey Pojanowski, University of Notre Dame Law School
Prof. Peter Strauss, Columbia Law School
Prof. Christopher Walker, The Ohio State University Moritz College of Law
Description: When Chevron was first decided it was generally welcomed on the right side of the political spectrum as a principled method constraining judicial discretion and permitting the executive to exert policy control over the administrative state. But as the administrative state continues to grow, some now see Chevron as removing an important check on government power and an abdication of the judiciary’s authority to say what the law is. Some members of the Supreme Court are now open to reconsidering judicial deference to agency action, at least in certain areas, such as determining their own jurisdictions and interpreting their own regulations. The panel will consider the extent to which the new skepticism toward Chevron in particular and judicial deference to agencies in general is justified.
Unlike the other events, this event was videotaped (and live-streamed), and you can view it here. At the 33:00 mark, I present some of the findings from my empirical work on agency statutory interpretation and a lot of the findings from my ACUS report on the role of federal agencies in legislative drafting—and how those findings may affect our skepticism about Chevron deference. This is a preview of a current paper I’m working on, so any feedback would be greatly appreciated.