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List of scholarly work pertaining to judicial deference to administrative agencies

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What is deference in the context of the administrative state?

Deference, or judicial deference, is a principle of judicial review in which a federal court yields to an agency's interpretation of a statute or regulation. The U.S. Supreme Court has developed several forms of deference in reviewing federal agency actions, including Chevron deference, Skidmore deference, and Auer deference. Learn about state-level responses to deference here.

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This page lists scholarly work pertaining judicial deference.

Deference occurs when a federal court defers to an agency’s interpretation of (1) a statute Congress authorized the agency to administer or (2) the agency’s own regulations. The U.S. Supreme Court developed multiple deference doctrines throughout the 20th century, including Chevron deference, Skidmore deference, and Auer deference.[1][2]

Since 2015, the United States Supreme Court has reconsidered aspects of judicial deference, refining Chevron deference, limiting its application, and recognizing exceptions, according to administrative law scholar Michael Kagan. In Kisor v. Wilkie (2019), the court upheld Auer deference but narrowed its scope, reflecting what Kagan described as a "period of uncertainty" for judicial deference.[3][4]

On June 28, 2024, the Supreme Court overturned Chevron deference in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, ruling that federal courts may not defer to an agency’s interpretation of an ambiguous statute.[5]

Articles about judicial deference to administrative agencies

The following table features articles about judicial deference:

Articles about judicial deference to administrative agencies
Author(s) Title Source
Henry Paul Monaghan Marbury and the Administrative State Columbia Law Review, Vol. 83, No.1 (January 1983)
Cynthia R. Farina Statutory Interpretation and the Balance of Power in the Administrative State Columbia Law Review, Vol. 1989 (1989)
Antonin Scalia Judicial Deference to Administrative Interpretations of Law Duke Law Journal, Vol. 1989, No. 3 (1989)
Cass R. Sunstein Law and Administration after Chevron Columbia Law Review, Vol. 90, No. 8 (December 1990)
Ann Woolhandler Judicial Deference to Administrative Action—A Revisionist History Administrative Law Review, Vol. 43, No. 2 (Spring 1991)
Thomas Merrill Judicial Deference to Executive Precedent The Yale Law Journal, Vol. 101 (1992)
John F. Manning Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules Columbia Law Review, Vol. 96 (1996)
William N. Eskridge and Lauren Baer The Supreme Court's Deference Continuum, An Empirical Analysis (Chevron to Hamdan) Georgetown Law Journal (April 2008)
Jerry L. Mashaw Administration and “The Democracy”: Administrative Law from Jackson to Lincoln, 1829-1861 The Yale Law Journal, Vol. 117, No. 8 (June 2008)
Connor N. Raso and William N. Eskridge Chevron as a Canon, Not a Precedent: An Empirical Study of What Motivates Justices in Agency Deference Cases Columbia Law Review, Vol. 110, No. 7 (November 2010)
Christopher J. Walker Chevron Inside the Regulatory State: An Empirical Assessment Fordham Law Review, Vol. 83, Issue 2 (2014)
Neomi Rao Administrative Collusion: How Delegation Diminishes the Collective Congress New York University Law Review, Vol. 90, No. 5 (2015)
Jacob Gersen and Adrian Vermeule Thin Rationality Review Michigan Law Review, Vol. 114 (2016)
Philip Hamburger Chevron Bias The George Washington Law Review, Vol. 84, No. 5 (September 2016)
Aditya Bamzai The Origins of Judicial Deference to Executive Interpretation The Yale Law Journal, Vol. 126, No. 4 (Feb. 2017)
Aaron L. Nielson, et al. Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations Yale Journal of Regulation, Notice & Comment Blog; Washington University in St. Louis Legal Studies Research Paper No. 2847688; Minnesota Legal Studies Research Paper No. 16-41; Virginia Public Law and Legal Theory Research Paper No. 2017-38 (2017)
Kent Barnett, Christina L. Boyd, and Christopher J. Walker The Politics of Selecting Chevron Deference University of Georgia School of Law Legal Studies Research Paper No. 2017-21; Ohio State Public Law Working Paper No. 400 (2017)
Michael Kagan Loud and Soft Anti-Chevron Decisions UNLV William S. Boyd School of Law Legal Studies Research Paper (2017)
Jonathan R. Siegel The Constitutional Case for Chevron Deference Vanderbilt Law Review, Vol. 71 (2018)
Kent Barnett and Christopher J. Walker Chevron Step Two's Domain Notre Dame Law Review, Vol.93; Ohio State Public Law Working Paper No. 430 (2018)
Christopher J. Walker Attacking Auer and Chevron Deference: A Literature Review The Georgetown Journal of Law & Public Policy, Vol. 16 (2018)
Terence J. McCarrick Jr. In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron San Diego Law Review (2018)
Craig Green Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law Temple University Legal Studies Research Paper No. 2018-35 (2018)
Cass R. Sunstein Chevron as Law Georgetown Law Journal (2019)
Adam R. F. Gustafson The Major Questions Doctrine Outside Chevron’s Domain Center for the Study of the Administrative State Working Paper 19-07 (2019)

See also

Footnotes

  1. ↑ Yale Law Journal, "The Origins of Judicial Deference to Executive Interpretation," February 2017
  2. ↑ Blattmachr, J. (2006). Circular 230 Deskbook. New York, NY: Practising Law Institute. (pages 1-21)
  3. ↑ UNLV William S. Boyd School of Law Legal Studies Research Paper, "Loud and Soft Anti-Chevron Decisions," September 9, 2017
  4. ↑ SCOTUSblog, "Kisor v. Wilkie," accessed December 10, 2018
  5. ↑ SCOTUSblog, "Loper Bright Enterprises v. Raimondo," accessed July 3, 2024
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Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States
Terms
Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large
Bibliography
Agencies
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