Kristin E. Hickman (University of Minnesota – Twin Cities – School of Law) has posted Chevron as Cautionary Tale on SSRN. Here is the abstract:
Written for a symposium on the legacy of the late Justice Antonin Scalia, this Essay examines his role in the rise and fall of Chevron deference to agency interpretations of statutes in relation to his commitments to rules over standards and textualism as an interpretive method. The Essay contends that a key reason the Chevron doctrine failed was the rigidity of its two steps and a resulting shift in judicial emphasis to debating how Chevron step one was supposed to work rather than the meaning of the statutes at stake. The Essay then describes how the Supreme Court’s more rule-like, two-step “change-in-position doctrine” announced in FDA v. Wages & White Lion Investments may be guiding arbitrary and capricious review under the Administrative Procedure Act in a similar direction.
Highly Recommended!
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