REASON AND REASONABLENESS IN REVIEW OF AGENCY DECISIONS

[...] just as Erie Railroad v. Tompkins7 marked the rejection of the traditional conception of a freestanding, discoverable common law, Chevron has been dubbed the Erie of the administrative state for its recognition of the limits of legal reasoning.8 If interpretation of ambiguity is legislative pr...

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Bibliographic Details
Published in:Northwestern University law review 2010-07, Vol.104 (3), p.799
Main Author: Pojanowski, Jeffrey A
Format: Article
Language:English
Subjects:
Administrative law
Ambiguity
Commodities trading
Common law
Federal court decisions
Fraud
Institutionalism
Judges & magistrates
Judicial reviews
Products liability
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Summary:[...] just as Erie Railroad v. Tompkins7 marked the rejection of the traditional conception of a freestanding, discoverable common law, Chevron has been dubbed the Erie of the administrative state for its recognition of the limits of legal reasoning.8 If interpretation of ambiguity is legislative promulgation to which the judiciary is illsuited, Judge Calabresi's lament about the eclipse of the courts by the "?statutorification' of American law" is truer than he thought.9 But does Chevron really mean all that? [...] they suggest that in large part, institutional analysis of the deference question is inseparable from the more general theoretical disagreement that institutionalism aspires to avoid, thus suggesting that the methodological debate about the superiority of institutional analysis is overdrawn.\n338 Accordingly, uncertainty about Chevron's application to common law doctrine embedded in statutory regimes plausibly reflects that deeper tension between fiat, which counsels deference to policymakers, and reason, which does not.339 If the pattern of uncertainty over deference to common law interpretations also emerges in multiple Chevron problems, including the Step Zero metaquestion, that parallel suggests that confusion about the scope and nature of Chevron also reflects the courts' broader struggle between these two conceptions of law [that] can perhaps be thought of as singling out a particular aspect of the legal process as theoretically fundamental.
ISSN:0029-3571