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Judicial Deference, Agency Commitment, and Force of Law
Abstract
The law governing judicial deference to agency statutory constructions is a complex brew of improbable fictions and proceduralism. One reason this state of affairs persists is that courts have failed to resolve a contradiction between two competing, sensible impulses in deference doctrine. Oceans of precedent over the last 150 years have stressed that courts should defer to longstanding, reasonable constructions by agencies of statutes they administer. Then along came Chevron, which extolled agency flexibility and instructed courts to extend strong deference even to interpretive flip-flops. Competition between the virtues of interpretive consistency and flexibility has bubbled through and confused judicial deference analysis ever since. The Supreme Court's recent efforts to limit the scope of Chevron's strong deference to agency constructions that carry the force of law has worsened such confusion, in part because the Court's discussion and application of this concept were incoherent. This Article proposes a commitment approach to this force-of-law limitation that has deep roots in the concept of the rule of law and considerable power to clarify deference doctrine by resolving the clash between the competing values of interpretive consistency and flexibility. For the rule of law to be genuine, the default position must be that laws have general applicability - i.e., the law for X should be the law for Y as well. This truism suggests that an agency's statutory construction properly can enjoy the force of law only where the agency has committed to applying its construction consistently across time and parties. Where an agency's construction is longstanding, the agency's commitment to consistent application is self-evident. The puzzle, of course, is to reconcile this commitment approach with Chevron's praise of interpretive flexibility. One solution is to recognize that an agency can genuinely commit to a new interpretation by adopting it in a manner that makes it costly to change course later. Where agencies commit to consistency in this way, there is less need for courts to engage in independent statutory construction to protect rule-of-law values, which should leave courts freer to accept the premise of strong deference that the best way to determine the meaning of an agency's statute is to trust the agency's own (rational) construction.
... Soliciting public comments helps to combat confirmation bias, which might otherwise pose serious problems for bureaucrats issuing regulations that have significant effects on markets and affect even more people indirectly. 183 These problems may be even more severe in cases of excessive interest-group influence or agency capture, which are generally not regarded as significant problems in criminal law enforcement. 184 ...
This article examines the emergence, over the last two decades, of a doctrine that bases probable cause on the unshared knowledge of different law enforcement agents working together on an investigation. Thus if an officer conducts a search or arrest without probable cause, the action may be validated by looking to the other officers' knowledge. So far the rule has been confused with the "collective knowledge" rule and has traveled under that name. The article argues that the new rule (here called the "constructive knowledge" rule) depends on constructive belief and may establish constructive, not actual, probable cause. While the rule might seem to be justifiable on the ground that the officers would have pooled their information in any case, research on cognitive bias suggests that an after-the-fact analysis of the officers' knowledge would likely exaggerate any inculpatory evidence while disregarding exculpatory evidence. Fourth Amendment law imposes few formal ex ante requirements on officers, but some de minimis formality is appropriate here, as we may see by looking to the role of collaborative decision-making in administrative law. The article argues that courts should make explicit the rule's "inevitable communication" premise, and should refuse to aggregate the unshared information. Failing that, courts should require the prosecution to show that the officers would have shared their knowledge before leaving the scene. The "constructive knowledge" problem reveals the difficulty of factoring the risk of error into the analysis of probable cause when the requisite quantum of cause remains fixed in all cases. That difficulty, in turn, suggests that the probable-cause calculus may be likened to the Mathews v. Eldridge formula for termination of governmental benefits. This analogy points up other difficulties with the notion of "transsubstantive" probable cause.
... 207 Mead suggests that many, if not most, statutory interpreta- tions advanced through informal adjudications are only eligible for Skidmore deference. 208 IRS adjudications of taxpayer liabilities take place without public input regarding interpretive issues, 209 and the IRS remains largely free to change its litigating positions so long as it of- fers a reasonable justification for its inconsistency 210 -both factors po- tentially suggesting that Chevron deference may be inappropriate in the context of IRS adjudications of taxpayer liabilities. While appeal- able to the courts, however, IRS evaluations of refund claims or deter- minations regarding taxpayer liabilities are the product of semiformal proceedings mandated by Congress and are legally binding and en- forceable without resort to the courts, and thus appear potentially ...
In earlier work, I found that more than 40% of Treasury regulations studied are susceptible to legal challenge for their failure to satisfy Administrative Procedure Act rulemaking requirements. Given this finding, why is it that taxpayers rarely raise such claims? The article explores this question and focuses particularly on statutory and doctrinal limitations on pre-enforcement judicial review in the tax context and their role in further limiting post-enforcement challenges. Although the article proposes ways in which the courts could relax the limitations on pre-enforcement judicial review in tax cases, the article also acknowledges that the courts are unlikely to change course and that congressional action may be necessary.
... A powerful additional argument for this position invokes the importance of political accountability: changes in an agency's interpretive position may reflect changes in the agency's political priorities—often triggered by a change in the presidential administration—and courts should respect this legitimate rationale for policy change (Pierce 1988; Scalia 1989; Sunstein 1990; Gossett 1997). The principal countervailing consideration noted in the literature is the " rule of law " interest in predictability and consistency in the meaning of law (Sunstein 1990; Merrill 1992; Murphy 2005). Another concern is that a policy-motivated change in interpretation might reflect not a legitimate policy change, but rather an unjustified political hostility to an earlier regulatory program (Weaver 1992). ...
Although administrative law doctrine requires courts to defer to an agency’s reasonable statutory interpretation, the doctrine is unclear as to whether an agency gets less deference when it changes its own prior interpretation. We formally analyze how judicial deference to revised agency interpretations affects the ideological content of agencies’ interpretations. We find a nonmonotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism. This relationship arises because as courts become less deferential to revised interpretations, the initial agency finds it more attractive to promulgate a moderate interpretation that will not be revised. However, the less deferential the courts, the more extreme this moderate interpretation becomes. Normatively, our results suggest that an interest in responsiveness of interpretive policy to the preferences of the incumbent leadership favors deference to revised interpretations, whereas an interest in ideological moderation favors a somewhat less deferential posture to interpretive revisions.
... A powerful additional argument for this position invokes the importance of political accountability: changes in an agency's interpretive position may reflect changes in the agency's political priorities—often triggered by a change in the presidential administration—and courts should respect this legitimate rationale for policy change (Pierce 1988; Scalia 1989; Sunstein 1990; Gossett 1997). The principal countervailing consideration noted in the literature is the " rule of law " interest in predictability and consistency in the meaning of law (Sunstein 1990; Merrill 1992; Murphy 2005). Another concern is that a policy-motivated change in interpretation might reflect not a legitimate policy change, but rather an unjustified political hostility to an earlier regulatory program (Weaver 1992). ...
Although administrative law doctrine requires courts to defer to an agency’s reasonable statutory interpretation, the doctrine is unclear as to whether an agency gets less deference when it changes its own prior interpretation. We formally analyze how judicial deference to revised agency interpretations affects those interpretations’ ideological content. We find a non-monotonic relationship between judicial deference to inconsistent agency interpretations and interpretive extremism. This arises because as courts become less deferential to revised interpretations, the initial agency finds a moderate interpretation that will not be revised more appealing. Normatively, our results suggest that an interest in responsiveness of interpretive policy to the preferences of the incumbent leadership favors deference to revised interpretations, while an interest in ideological moderation favors a somewhat less deferential posture to interpretive revisions.
A synthesis of the work of two political and legal scholars, John Rohr and Lon Fuller, properly balances constitutional and managerial values, supplementing other theories that offer useful but insufficient support for American government agency legitimacy. Agencies reflecting that balance would strengthen their legitimacy—a particularly valuable goal in an era of low confidence in American government. Rohr's focus on the constitutional oath of office and American regime values, and Fuller's insistence that law must serve human needs, leave a great deal indeterminate and discretionary but nevertheless set boundaries. Bureaucrats who risked or sacrificed their jobs to avoid transgressing those boundaries offer models of loyalty to the Rohr-Fuller balance of values. The behavior of officials in the Office of the Comptroller of the Currency in thwarting measures that could have averted the financial crisis of 2007 offers a model of bureaucrats who violated those boundaries.
In Riegel v. Medtronic, Inc., the Supreme Court held that FDA approval of a medical device preempted state common law tort duties. But the Court did not clearly resolve the substantial question, of administrative and constitutional law, of whether courts owed deference to agency interpretations of the preemptive scope of the statutes they administer.This article argues that Riegel can be read as not simply deferring this deference question but as part of a trend in recent decisions favoring a rule directing courts to avoid deciding it. The Article canvasses the various rationales for constitutional avoidance rules and argues that the rule the Court appears to have implicitly adopted is justified because it allows courts to resolving a difficult constitutional question - the question of how constitutional norms allocate, among Congress, the Executive, and federal courts, the responsibility for police the borders between federal and state power and between legislative and executive authority. The Article then explains how the proposed deference-avoidance rule would work in practice, with respect to both Chevron deference and Skidmore deference.
The Bush administration has asserted a stunning broad vision of executive authority under the Constitution. The expansive scope of Article II power extends to matters both foreign and domestic. It includes, for example, claims of inherent authority in connection with the "war on terror" as well as administrative agency preemption of state law. This Article does not address the legality of any of the Bush administration's claims of executive power. It operates on the assumption that they are at the constitutional envelope. Its focus is on the appropriate role of courts in response to such envelope-pushing constitutional claims. The Article describes a structural equilibrium approach for courts to follow. Under this approach, the judiciary should respond to a constitutional change by preserving the foundational principles on which the Constitution is based. As the Article describes, the three foundational principles are: (1) a commitment to separation of powers both vertically and horizontally; (2) the maintenance of a role for the people in governing; and (3) the preservation of government functionality. In order to apply the theory of structural equilibrium, the Article further describes the salient features of the Bush vision of Article II executive power. Using a number of contemporary examples, the Article outlines a core feature of the Bush vision and three sub-attributes. The core feature is a commitment to the unilateral exercise of power. The three sub-attributes are: (1) power is often exercised in secret; (2) intolerance to criticism; and (3) retribution against critics. The Article then applies the structural equilibrium approach to the particular constitutional vision of the Bush administration. It does so by considering the October 2005 Term of the United States Supreme Court. It does not purport that the Court actually used the structural equilibrium approach. Rather, it considers the Term as if the Court had done so. Along the way, it discusses a number of recent high profile decisions, including those involving military commissions, campaign finance reform laws, assisted suicide, and partisan redistricting. It concludes that the October 2005 would have looked different in important respects had the Court used the structural equilibrium approach as part of its decision-making calculus.
U.S. antitrust enforcement has declined in political salience over the past few decades even while levels of public antitrust enforcement and funding for the antitrust agencies have remained generally consistent with those of earlier periods. Antitrust has become a technocratic discipline in the minds of the political elite, delegated by Presidents and Congress to specialists in the Justice Department and Federal Trade Commission. Nonetheless, antitrust retains influential populist institutions including the civil and criminal jury, an adjudicatory system focused on binary determinations about guilt or innocence, and a Federal Trade Commission that is constrained from exercising a norm-creation role. The technocratic shift begun by the political elite could be furthered by a variety of reforms including separating cartel enforcement from other antitrust enforcement, moving from adjudication to administration, and granting the FTC norm-creation powers. Technocratic reforms are justified by three key attributes of modern antitrust - consensus on antitrust goals, resolution of the most divisive ideological questions, and the absence of a need to balance the interests of identified groups.
Section 554(a) of the Administrative Procedure Act provides that if a statute requires an agency an adjudicatory decision "to be determined on the record after opportunity for agency hearing," that hearing will be subject to various requirements, including the use of an independent Administrative Law Judge, separation of the functions of investigation/prosecution and decision, and a prohibition on ex parte contacts. The courts of appeals have reached three distinct positions with respect to the question of when a statutory hearing requirement triggers 554(a) of the APA. First, the First Circuit articulated a presumption that, for adjudications, a statutory hearing provision requires APA formal adjudication unless Congress has indicated the contrary. Second, the Seventh Circuit articulated the opposite presumption. Third, the D.C. Circuit and the First Circuit held that an agency's interpretation of such a hearing provision qualifies for Chevron deference. Professor Jordan argues that Chevron deference should not apply to these decisions because Congress would not have intended the courts to defer to an agency's decision to avoid the requirements of formal adjudication. He suggests that the courts should recognize a presumption that Chevron deference does not apply to an agency's decision applying 554(a) to a particular statutory hearing requirement. After the necessary background, his argument proceeds in two steps. First, he examines precisely what is at stake in the 554(a) trigger decision. He demonstrates that courts, agencies, and commentators have been trapped in an analogy that treats APA hearings like civil trials, creating much concern about the burdens, delays, and costs of such proceedings. Professor Jordan shows that these concerns have been vastly overstated. APA 554, 556, and 557 do not require trial-type procedure. They require the use of an independent ALJ and prohibit ex parte contacts and combination of functions. Beyond those essentials, the agency has vast discretion to control the mechanics of the hearing, from authorizing trial-type litigation to requiring much more informal and efficient process, subject to the requirement to allow cross-examination only "as may be required for a full and true disclosure of the facts." Thus, what is truly at stake in deciding whether formal adjudication requirements have been triggered is whether the legitimacy and fairness of the proceeding will be protected by the three core limitations on agency power. Second, Professor Jordan demonstrates that the APA Congress would not have intended judicial deference to this crucial procedural decision. He first establishes that the availability of Chevron deference depends upon congressional intent in the particular circumstances. He then traces the history of the struggle over agency power from 1929 to 1946, showing that the one thing all sides agreed upon was the need for independence, impartiality, and fairness as ultimately embodied in 554, 556, and 557 of the APA. In 554(a), Congress left the actual decision about the nature and availability of a particular hearing to a later enactment, but Congress would not have intended judicial deference to an agency's decision that it was not bound by the core legitimizing provisions of the APA. Post-APA developments support that conclusion.
Using the lens of the precedential status of vacated opinions (that is, opinions supporting a judgment that has been vacated on any one of a variety of grounds), this Article explores the role of precedent at this point in the development of the American legal system. It identifies a deep disconnect in legal scholarship. One branch of the academy is embroiled in empirical debates about whether precedent (as opposed to preferences or institutional concerns) often makes a difference in judicial outcomes. Another branch debates normative questions such as whether foreign law is appropriately considered persuasive precedent in American courts, whether the holding/dictum distinction is evaporating, and whether not for publication opinions can be cited at all. Common to all of this scholarship is the underlying question of what constitutes law, and the extent to which a formalist answer to that question is possible. The unpretentious vacated opinion provides an unlikely but surprisingly useful entry point into these questions. The growth in recent years of the vacated on other grounds citation indicates that vacated opinions are leading a remarkably robust life after vacation. One thrust of this piece is empirical - exploring the role vacated opinions play in current judicial decisionmaking. A second thrust is normative - exploring what, if any role, they (or, for that matter, opinions reversed on other grounds) should play. The Article concludes that, while vacated opinions should not constitute binding precedent even if they have been vacated on grounds that do not impugn their reasoning for the case at hand, such opinions are, and should be, persuasive authority. More importantly, this inquiry reveals that the notion of persuasive authority turns out to be more meaningful than may first appeal. When it comes to judicial precedents, persuasion, is a badly-chosen word to reflect the role such precedents actually play in our system. Norms of the judicial crafts require courts to take into account at least those non-binding precedents that rank high on commonly-accepted scales of persuasiveness, with the result that persuasive precedents (including vacated and reversed opinions) often look a lot like law.
Administrative agencies wield a necessary but dangerous power. Some control of that power is constitutionally required and normatively justified. Yet widely discordant views persist concerning the appropriate means of control. Scholars have proposed competing administrative control models that variably place the judiciary, the President, and Congress at the helm. Although these models offer critical insights into the institutional competencies of the respective branches, they tend to understate the limitations of those branches to check administrative power and ultimately marginalize the public interest costs occasioned by second-guessing administrative choice. The “relative checks” paradigm introduced here seeks to improve upon existing models in at least two critical respects. First, it posits the existence of an optimal control point within the shared values of two sometimes competing missions in administrative law: that of promoting the public interest and that of legitimizing administrative power within our constitutional scheme. Next, the paradigm argues that the optimal control ideal can be best realized by tailoring both the source and degree of administrative control to particular types of administrative actions with sensitivity to the institutional competencies of the respective checking bodies. Prescriptively, this framework seeks to apportion control among the respective branches in a way that capitalizes on each branch’s competencies while democratically promoting the public interest. Descriptively, looking through a relative checks lens may also enhance our under-standing of existing administrative practices and the academic critiques thereof.
This Article offers a comprehensive examination of the Skidmore standard for judicial review of agency legal interpretations as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. First, the Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. In the study, we evaluate two competing conceptions of Skidmore review - the independent judgment model and the theoretically more deferential sliding-scale model - and conclude that the appellate courts overwhelmingly follow the sliding scale approach. Also, contrary to two other, significantly more limited studies, we document that Skidmore review is highly deferential to agency interpretations of law, with agency interpretations prevailing in more than 60% of Skidmore applications. Drawing from the Skidmore applications studied, we then analyze more qualitatively how the appellate courts apply the Skidmore review standard as a sliding scale and identify where those courts are struggling to make sense of Skidmore's dictates within that model. To resolve the lower courts' difficulties, we propose re-conceptualizing Skidmore's sliding scale as balancing comparative agency expertise against the potential for agency arbitrariness. Finally, we note several burgeoning issues concerning the scope of Skidmore's applicability and offer preliminary thoughts for addressing those questions.
What does it mean to say that an administrative agency is a source of law? Agencies constantly generate what our society regards as law, making and remaking legal obligations at a frenetic pace. Yet most of the rules agencies make lack the force of law and recognizing those that have this force is often an exceptionally complicated task. It is a task, in fact, that courts are often not suited to performing, at least not very well. In this article, I argue that the nature of contemporary legislative language and our turn toward increasingly informal agency processes have combined to render the bulk of lawmaking in our society unrecognizable within our conventional pictures of legality. If legal rules are, as most positivists maintain, simply “exclusionary reasons” by which legal actors guide their conduct, agency rules that are never enacted as “law” are becoming more and more of our law’s content. Informal processes like notice and comment were neither the beginning nor the culmination of our legal system’s departure from traditional, standardized forms of law. But they may be the best evidence of a highly plastic concept of law that is ascendant today.
The Supreme Court's 1984 decision in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. contains a revolutionary analysis of the role of agencies and courts in interpreting statutes. Professor Merrill's Article surveys the actual practice of the Supreme Court since Chevron and shows that the Court does not in fact follow the framework of that case on any consistent basis. He argues that the divergence between theory and practice reflects unease with Chevron's implications for the balance of power between the branches of government and suggests the need for a new model. The last two sections of the Article set forth an alternative to Chevron-the executive precedent model. Under this conception, executive interpretations would be viewed as a form of precedent and would be treated by courts the same way as precedents of courts of concurrent jurisdiction: not legally binding, but entitled to a presumption of correctness, and given more or less deference depending on a variety of contextual factors. Professor Merrill argues that the executive precedent model would avoid Chevron's failings, provide an explanation for the multiple "deference" factors developed in the pre-Chevron era, and offer better incentives for all institutional actors.
The nondelegation doctrine may be dead as doctrine, but it is very much alive as a subject of academic study. Concurring opinions by Justices Thomas and Stevens in the American Trucking case raise anew the question whether the nondelegation doctrine has any grounding in the Constitution's text and structure. The answer is "yes." The nondelegation doctrine flows directly from the doctrine of enumerated powers: the executive and judiciary have no enumerated power to make law, and Congress has no enumerated power to constitute them as lawmakers. The correct formulation of the Constitution's nondelegation doctrine was outlined by Chief Justice Marshall in 1825, and no one has improved on his formulation in nearly two centuries.
The famous case of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), holds that a reviewing court should evaluate an administrative agency's interpretation of its enabling legislation by first asking whether the statute has a clear meaning ("step one"); if the statute is ambiguous, the interpretation should be upheld if it is reasonable ("step two"). But if the agency's interpretation is not clearly contrary to the statute, on what grounds could it be deemed unreasonable? Cases from the Supreme Court, which has never set aside an agency action on the basis of step two, do not answer this question. This article examines a line of D.C. Circuit cases that tend to identify Chevron step two review with traditional "arbitrary and capricious" review. The article defends this approach and suggests that it offers a better solution to the problem of giving meaning to step two than any of the salient alternatives.
Reports of the death of the nondelegation doctrine have been greatly exaggerated. Rather than having been abandoned, the doctrine has merely been renamed and relocated. Its current home consists of a set of nondelegation canons, which forbid executive agencies from making certain decisions on their own. These canons forbid extraterritorial application of national law, intrusions on state sovereignty, decisions harmful to Native Americans, and absolutist approaches to health and safety. The nondelegation canons are far preferable to the old nondelegation doctrine, because they are subject to principled judicial application, and because they do not threaten to unsettle so much of modern government.
76 Id. at 857. 77 Id. (citing the EPA's discussion of the meaning of "source" at 45 Fed
- Cynthia R Farina
Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the
Administrative State, 89 COLUM. L. REV. 452 (1989).
75 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 840
(1984).
76 Id. at 857.
77 Id. (citing the EPA's discussion of the meaning of "source" at 45 Fed. Reg.
52,697 (Aug. 7, 1980), which relied on Alabama Power Co. v. Costle, 636 F.2d 323
(D.C. Cir. 1979), and ASARCO, Inc. v. EPA, 578 F.2d 319 (D.C. Cir. 1978)).
191 5 U.S.C. § 557(c) (2000).
192 United States v. Mead Corp., 533 U.S. 218, 230-31 (2001).
Mead seems likely to contribute to confusion . . . because the Court appeared to lack a coherent notion of what it means to say that an action has the 'force of law
- Admin L Rev
ADMIN. L. REV. 771, 799 (2002) (noting that " Mead seems likely to contribute to
confusion... because the Court appeared to lack a coherent notion of what it means to
say that an action has the 'force of law' " ).
109 Christensen, 529 U.S. at 587.
110 Id. at 579 (citing 29 U.S.C. § 207(o)(1) (2000)).
emphasis added) (numerous citations omitted); see also Burnet v. Chicago Portrait Co (observing that inconsistent agency interpretation would " be taken into account only to the extent that it is supported by valid reasons " ). 49 See United States v
- Mo
- R R Pac
- Co
48 Mo. Pac. R.R. Co., 278 U.S. at 280 (1929) (emphasis added) (numerous citations
omitted); see also Burnet v. Chicago Portrait Co., 285 U.S. 1, 16 (1932) (observing that
inconsistent agency interpretation would " be taken into account only to the extent that it
is supported by valid reasons " ).
49 See United States v. Mead Corp., 533 U.S. 218, 228 (2001) (quoting Skidmore v.
201; Merrill & Hickman, supra note 13
- Ct John
- F Duffy
CT. REV. 201; Merrill & Hickman, supra note 13; John F. Duffy, Administrative Common
Law in Judicial Review, 77 TEX. L. REV. 113 (1998);
- V Panama Refining Co
- Ryan
Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).
Chevron Step-Zero, supra note 74, at 32-33 (contending that, under its "best and most appealing reconstruction Mead favors relatively formal procedures to foster "fairness and deliberation," but also noting that the "value of formal procedures
- Cf
- R Cass
- Sunstein
194 Cf. Cass R. Sunstein, Chevron Step-Zero, supra note 74, at 32-33 (contending
that, under its "best and most appealing reconstruction," Mead favors relatively formal
procedures to foster "fairness and deliberation," but also noting that the "value of formal
procedures... might be questioned").
Is the Clean Air Act Unconstitutional?, 98 MICH (observing that 1935 was the nondelegation doctrine's "only good year"). 215 But see Cass R. Sunstein, Nondelegation Canons, 67 U
- R Cass
- Sunstein
214 Cass R. Sunstein, Is the Clean Air Act Unconstitutional?, 98 MICH. L. REV. 303,
332 (1999) (observing that 1935 was the nondelegation doctrine's "only good year").
215 But see Cass R. Sunstein, Nondelegation Canons, 67 U. CHI. L. REV. 315, 315
(2000) (noting the common refrain that the nondelegation doctrine is dead; contending
that it has found a new home in various canons of statutory construction).
It is fair to assume generally that Congress contemplates administrative action with the effect of law when it provides for a relatively formal administrative procedure tending to foster the fairness and deliberation that should underlie a pronouncement of such force
- Id
193 Id. ("It is fair to assume generally that Congress contemplates administrative
action with the effect of law when it provides for a relatively formal administrative
procedure tending to foster the fairness and deliberation that should underlie a
pronouncement of such force.").
- Christensen V. Harris
- Seidenfeld
- Thomas V
- Anthony
- Id
- U S C
- N L R B
For an excellent review of the case-law history of judicial deference as well as a powerful argument claiming that the Supreme Court has never really abandoned the Hearst model of deference, see Reese, supra note 28
- N L R B N L R B