Prominent judges and scholars have criticized the familiar Chevron deference scheme on the ground that its two steps are redundant. But each step of traditional two-step Chevron actually does unique interpretive work. In short, step one asks whether agency interpretations are mandatory, whereas step two asks whether they are reasonable. Other judges and scholars defend two-step Chevron on the ground that the second step should be equated with arbitrary-and-capricious review. But that approach makes Chevron partially redundant with the Administrative Procedure Act and compresses the distinct mandatoriness and reasonableness questions into an artificially singular first step. This Article identifies a new approach, called “optional two-step,” which first asks whether the agency’s view is reasonable and then gives courts discretion to determine whether the agency’s view is also mandatory. This discretionary decision procedure recognizes that important normative considerations underlie the choice between one- and two-step versions of Chevron. For example, two-step Chevron fosters the rapid development of precedent, whereas one-step enforces norms of judicial restraint. Chevron thus resembles qualified-immunity jurisprudence, which has likewise struggled to answer the normative question of whether unnecessary holdings should be impermissible, obligatory, or optional. Qualified-immunity case law also sheds much-needed light on how courts should exercise their Chevron discretion. Finally, a review of all published federal appellate decisions citing Chevron in 2011 sheds light on current Chevron practice and suggests that optional two-step may best explain the tensions underlying current Chevron jurisprudence.
Gradualism should have won out in Dobbs v. Jackson Women’s Health, exerting gravitational influence on the majority and dissenters alike. In general...
On December 15, 2023, the U.S. Court of Appeals for the Fifth Circuit issued its decision in Illumina, Inc. v. FTC. Although the court vacated and...
On January 17, the Supreme Court heard arguments in what are potentially the most significant commercial law cases of the last decade. In the...
There is a live debate going on over whether antitrust should take a broader view of the economics of market concentration. When antitrust reformers...
This casebook aspires to help students understand and think systematically about the techniques of statutory interpretation. It blends exposition with...
Supreme Court opinions involving race and the jury invariably open with the Fourteenth Amendment, the Civil Rights Act of 1875, or landmark cases like...
On January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes, long a feature...
In an era defined by partisan rifts and government gridlock, many celebrate the rare issues that prompt bipartisan consensus. But extreme consensus...
How should judges decide hard cases involving rights conflicts? Standard debates about this question are usually framed in jurisprudential terms...
Berryessa et al. (2022) consider how prior experience as a criminal prosecutor may influence judicial behaviour, but their concerns about prior...
The 1968 Fair Housing Act required local government recipients of federal money to take meaningful actions to affirmatively further fair housing (AFFH...
A federal grand jury in Florida indicted former President Donald Trump on June 8, 2023, on multiple criminal charges related to classified documents...
In our increasingly polarized society, claims that prosecutions are politically motivated, racially motivated, or just plain arbitrary are more common...
The lawyer-client relationship is pivotal in providing access to courts. This paper presents results from a large-scale field experiment exploring how...
The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed...
The issue of state separation of powers generally is not one that the federal courts have had much occasion to address. Recent issues have arisen...
Perhaps the most surprising feature of the last Supreme Court term was the extraordinary public discourse on 303 Creative LLC v. Elenis. According to...