Oren Tamir (University of Arizona – James E. Rogers College of Law) has posted The Stakes and Architecture of Deference (The Handbook of Comparative Statutory Interpretation in the Global Common Law World, Boughey, Burton Crawford & Tamir eds., Cambridge University Press, forthcoming) on SSRN. Here is the abstract:
Against the backdrop of a glaring neglect of serious scholarly treatment of statutory interpretation from a comparative perspective, the subject of deference—the question of who interprets statutes—is an exception. The rise and 2024 fall of Chevron deference in the United States fascinated observers in jurisdictions that formally reject deference, and a lively comparative literature has followed. This chapter asks two questions: what are the stakes of deference? And what doctrinal architecture should it take? The chapter distinguishes first between deference’s instrumental stakes (expertise, democracy, judicial depoliticization, uniformity, speed, candor, and guidance) from ideational ones (judicial humility, respect for the administrative state, and a realist/functionalist understanding of law). It then shows that each of these stakes often rests on contested premises whose weight varies across jurisdictions and domains, or at least has a shadow side. Despite this complexity, the chapter defends a global blueprint for thinking about deference. First, I argue deference deserves recognition in every mature constitutional democracy with an administrative state, though recognizing it is distinct from choosing its level. Second, the presumptive default should be not Chevron deference but rather “deference as respect,” as developed most sophisticatedly in Canada. Third, jurisdictions may legitimately dial deference up or down when local stakes justify it. Along the way, the chapter identifies an American paradox: the United States has the strongest instrumental case for deference, yet a legal culture increasingly unreceptive to its best form. And it highlights as well how the question of deference, and how much it is needed or not, is importantly connected to a country’s chosen methodology of statutory interpretation.
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