“Deference” is too Confusing – Let’s Call Them “Chevron Space” and “Skidmore Weight”

This Essay suggests an underappreciated, appropriate, and conceptually coherent structure to the Chevron relationship of courts to agencies, grounded in the concept of "allocation. " Because the term "deference" muddles rather than clarifies the structure's operation, this Essay avoids speaking of "Chevron deference" and "Skidmore deference. " Rather, it argues, one could more profitably think in terms of "Chevron space" and "Skidmore weight. " "Chevron space" denotes the area within which an administrative agency has been statutorily empowered to act in a manner that creates legal obligations or constraints—that is, its allocated authority. "Skidmore weight" addresses the possibility that an agency's view on a given statutory question may in itself warrant the respect of judges who are themselves unmistakably responsible for deciding the question of statutory meaning. "Skidmore weight" has an underappreciated pedigree. For almost two centuries, American courts have given agency views of statutory meaning considerable weight in deciding for themselves issues of statutory meaning. "Chevron space" reflects our more recent understanding and acceptance that Congress may validly confer on executive agencies the authority to act with the force of law, so long as the legality of their action within the boundaries of their authority can be judicially assured. Within its congressionally authorized space, the agency is the prime actor. From a court's independent conclusion that Congress has delegated authority to an agency—a conclusion that may even be informed by Skidmore weight given to the agency's own understandings of its authority—it follows ineluctably that the reviewing court is to act, not as decider, but as overseer

Legislative Theory and the Rule of Law: Some Comments on Ru­bin

Rubin succeeds in persuading us that the traditional equation of "legislation" and "law" is problematic in the administrative state -- that legislation is more often concerned with the (other) organs of government from which "law" emerges than with its direct formulation. Yet even if we accept this as a natural development, not a disease of which the body politic should be purged, the relationships between those responsible for "legislation" and those responsible for "law" should be a matter of active concern. Our wish for law, for conditions that will conduce to its creation, remains relevant to any theories we may hold for legislation. If delegation and void-for-vagueness, for example, do not serve well as direct measures of the worth or validity of legislative products, they continue to embody systemic values deserving of respect and consequently influencing our notions of appropriate relations between the legislative and law making efforts to the extent those are distinct. An insight that properly turns our attention from performance to control needs to notice how various options on the placement or exercise of control may affect the law-character of the system's ultimate output. Congress is not the only institution controlling, and the new theory for which Rubin calls must be concerned both with separation-of-powers questions concerning the appropriate allocation of controls across the whole of government, and the probable impact on Congress's legislating of the various kinds of controls that might be imagined. While today's theory of legislation must be differentiated from our theory of law, one cannot free one from the other. Professor Rubin's analysis pays insufficient heed to the continuing relationships

One Hundred Fifty Cases Per Year: Some Impli­ca­tions of the Su­preme Court's Limited Re­sourc­es for Judicial Review of Agen­cy Action

This Article is principally concerned with a question that seems not to have been much asked in these debates: whether, and in what ways, the stresses on the Court might be manifesting themselves in its opinions and, particularly, in doctrine. It starts with a brief presentation of the Court's well-known caseload problems, presenting them in relation to the overall dimensions of the judicial system in the United States. Looking beyond the Court's success in identifying and resolving particular, actual conflicts among the lower courts, this perspective treats as the central problem of interest the Court's shrinking opportunity to contribute discipline, cohesion and control to the nation's law. The essay then examines three different respects in which it might be thought the natural limits on the Court's opportunities to speak are shaping the character of the legal order

The Courts and the Congress: Should Judges Disdain Political History?

In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history of previous conflicts between legislature and judiciary ought to have demonstrated the hazards of a judiciary that holds itself aloof from the legislative enterprise. Both long traditions of the common law and constitutional allocations of authority counsel judges to interpret statutes with a view to adding 'force and life" to the remedies legislatures adopt. Professor Strauss acknowledges that, for the reasons Professor Manning evoked, courts should not accord legal authority to individual elements of legislative history. Nonetheless, he argues, the use of political history to inform the judge's own interpretation fits comfortably within a broad range of judicial practice; and pointedly ignoring political history risks releasing the courts from separation of powers constraints equally important to their own functioning. An intelligent, independent, and respectful attention to political history need reflect neither judicial subservience to the legislature nor, what would be as objectionable, judicial disdain for its work

Review Essay: Sunstein, Statutes, and the Common Law: Reconciling Markets, the Communal Impulse, and the Mammoth State

Wrestling with the place of statutes in law suggests the struggles over the relative place of the judiciary, legislature, and executive in government. The recent rounds of judicial formalism in reading statutes respond to real changes in government and its institutions. At the same time, the response threatens to enlarge executive authority at the expense of both Congress and the courts. Turning away from legislative politics and a view of courts as integrators of the legal order permits a centralization of effective authority for government that should seem particularly troublesome in a democracy characterized by enormous government. If the size and ambition of our government are not mistakes - and Sunstein makes that case well - then we need to address its work in ways that both enhance its opportunities for success, and promise restraints on its power. After the Rights Revolution is an important effort in that direction

Rules, Adjudications, and Other Sources of Law in an Executive De­partment: Reflections on the Interior Department's Admin­istra­tion of the Min­ing Law

Professor Strauss presents in this article a detailed case study of policymaking by the Department of the Interior in its administration of mining law. The antiquated nature of the General Mining Law of 1872, essentially unchanged since its enactment, has placed a great responsibility for "writing" the law of mining claims upon the Department, highlighting the problems that exist with the Department's internal allocation of its policymaking function. The focus of this piece is a study of those problems and an examination of possible remedies. Professor Strauss criticizes, in particular, the inaccessibility of Department "law" and the Department's excessive reliance upon adjudication rather than rulemaking to make policy. Even though rulemaking would create a more accessible body of agency policy and procedure, increase public participation and advance other jurisprudential values, bureaucratic obstacles currently discourage resort to this vehicle. Moreover, the Department's rulemaking branch has virtually no control over the adjudicatory body, leaving essentially unfettered policymaking power in the hands of a body whose own procedures make it unsuited for the task; this bifurcation of the rulemaking and adjudicatory functions within the Department has also resulted in an incoherent and inconsistent overall departmental policy

Long-term survival for a cohort of adults with cerebral palsy

The aim of this study was to investigate long-term survival and examine causes of death in adult patients with cerebral palsy (CP). A 1940–1950 birth cohort based on paediatric case referral allows for long-term survival follow-up. Survival is analyzed by birth characteristics and severity of disability from age 20 years (and age 2y for a subset of the data). Survival outcome compared with that expected in the general population based on English life tables. The main cohort consisted of 341 individuals, with 193 males and 148 females. Conditional on surviving to age 20 years, almost 85% of the cohort survived to age 50 years (a comparable estimate for the general population is 96%). Very few deaths were attributed to CP for those people dying over 20 years of age. Females survived better than males. However, females faced a greater increase in risk relative to the general population than did males. We conclude that survival outlook is good though lower than in the general population. The relative risk of death compared with the UK population decreases with age, although it shows some indication of rising again after age 50 years. Many more deaths were caused by diseases of the respiratory system among those dying in their 20s and 30s than would be expected in the general population. Many fewer deaths than expected in this age group are caused by injuries and accidents. For those people who die in their 40s and 50s, an increase in deaths due to diseases of the circulatory system and neoplasms is observed. More deaths than expected in this age group are due to diseases of the nervous system

Presidential Rulemaking

One of the prominent issues during the 1992 presidential campaign was abortion, in particular the federal government\u27s role in financing counseling activities that might promote it. In the Bush Administration, the Department of Health and Human Services had adopted a controversial regulation to withhold federal funds from any family planning or other medical service that included counseling about abortion in its activities; the Clinton campaign promised to rescind that regulation if Clinton were elected President. Shortly after his election, in a prominent White House ceremony, President Clinton announced that he had directed the rescission of the prior rule and the initiation of a fresh rulemaking to consider the issue. As the 1996 campaign approached, teen-age smoking, and the role of the tobacco companies in promoting it, emerged as a large public issue. During the summer of 1995 the President announced that he was directing the undertaking of a major rulemaking effort to control the advertising and distribution of tobacco products to minors; and in August of 1996 he announced the issuance of the rule. While the voluminous rulemaking documents emerged from the Food and Drug Administration, in which any authority to adopt the rule had been statutorily placed, press releases called it the President\u27s rule, and President Clinton led the public relations effort to announce its adoption, as he had its earlier proposal