Murphy, Richard W.2016-02-252016-02-252004Richard W. Murphy, A "New" Counter-Marbury: Reconciling Skidmore Deference and Agency Interpretive Freedom, 56 Admin. L. Rev. 1 (2004).http://hdl.handle.net/10601/2092In National Cable & Telecomm. Ass'n. v. Brand X Internet Serv., 125 S. Ct. 2688 (2005), the Supreme Court held that a court's earlier construction of a statute should trump an agency's later construction otherwise eligible for Chevron deference "only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion." Dissenting, Justice Scalia remarked that the majority's new approach to the relation of stare decisis to Chevron created "a wonderful new world full of promise for administrative law professors in need of tenure articles." He also chided that "[f]urther de-ossification may already be on the way, as the Court has hinted" in Edelman v. Lynchburg College, 535 U.S. 106 (2002), "that an agency construction unworthy of Chevron deference may be able to trump one of our statutory-construction holdings." This Article explored just this Edelman possibility in a pre-Brand X effort to clarify agency power to trump judicial statutory constructions. Its key move was to reexamine the nature of Skidmore deference in light of lessons drawn from the hard-look doctrine. Measured respect for agency analysis is an integral part of a court's Skidmore construction problem. It follows that an agency - by changing its analysis of a statute - alters the question confronting a court called upon to construe it.en-USChevronSkidmoreBrand Xstare decisisdeferenceArticle