Judicial Deference, Agency Commitment, and Force of Law

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dc.contributor.authorMurphy, Richard W.
dc.date.accessioned2016-03-30T22:30:59Z
dc.date.available2016-03-30T22:30:59Z
dc.date.issued2005
dc.description.abstractThe 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.en_US
dc.identifier.citationRichard W. Murphy, Judicial Deference, Agency Commitment, and Force of Law, 66 Ohio St. L. J. 1013 (2005).en_US
dc.identifier.urihttp://hdl.handle.net/10601/2189
dc.language.isoen_USen_US
dc.relation.urihttps://a.next.westlaw.com/Document/I9bd3e9b15ad211dbbe1cf2d29fe2afe6/View/FullText.htmlen_US
dc.relation.urihttps://advance.lexis.com/api/document/collection/analytical-materials/id/4JC5-4RB0-00CW-0032-00000-00?context=1000516en_US
dc.relation.urihttp://www.heinonline.org/HOL/Page?handle=hein.journals/ohslj66&div=31&collection=journals&set_as_cursor=17&men_tab=srchresultsen_US
dc.relation.urihttp://search.ebscohost.com/login.aspx?direct=true&db=lpb&AN=502583853&site=ehost-liveen_US
dc.subjectChevronen_US
dc.subjectMeaden_US
dc.subjectjudicial deferenceen_US
dc.subjectrule of lawen_US
dc.subjectforce of lawen_US
dc.subjectlongstanding statutory constructionsen_US
dc.titleJudicial Deference, Agency Commitment, and Force of Lawen_US
dc.typeArticleen_US

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