DEFERENCE AND DISAGREEMENT IN ADMINISTRATIVE LAW

• 成果类型: Article
• 署名作者: Dotan, Yoav
• 署名单位: Hebrew University of Jerusalem
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2019
• 页码: 761-801
• 关键词: judicial deference; SUPREME-COURT; agency interpretations; decision-making; jurisprudential regimes; federal-courts; chevron; doctrine; DEFENSE; rules

摘要

Deference is a fundamental concept in legal discourse, in general, and in administrative law, in particular. Rivers of ink have been spilled over the meaning of Chevron deference, but only scant attention has been given to the meaning of the concept of deference-a subject worthy of discussion in its own right. This Article intends to fill this gap by explaining the meaning of deference as a key to understanding the principal doctrines of administrative law. My main argument is that deference should be analyzed and understood in the context of the disagreement between the court (the deferrer) and the administrative agency making the initial determination (the deferree). The analysis of the relations between deference and disagreement enables me to distinguish between two fundamental modes of deference. The first is when the deferrer examines the contents of the deferree's decision on its merits and decides, notwithstanding the disagreement with it, to defer. I term this mode of decisionmaking disagreement deference. In the other mode, when deciding to defer, the deferrer chooses to avoid examining the contents of the deferree's decision, either in whole or in part. I term this mode of deference avoidance deference. Accordingly, in disagreement deference, content-independent considerations are weighed and balanced against all other considerations at the same time and on the same level. In avoidance deference, on the other hand, content-independent considerations enter the scene in a preliminary stage and affect the way by which the deferrer looks at all other considerations. I argue that the distinction between these two modes of deference is inherent to the idea of deferring. Therefore, this distinction is fundamental to the understanding of the concept of deference. I further suggest that the division between these two modes of deference can save as a key for understanding the developments of administrative law. I demonstrate this through two central themes regarding the doctrines of deference. The first is whether there is a distinction between Chevron and Skid more deference. I argue that-notwithstanding doubts raised by judges and scholars-these doctrines reflect two clearly distinct modes of deference. While Skidmore deference is disagreement deference, Chevron deference should be understood as a typical process of avoidance deference. Hence, the distinction between Chevron and Skidmore deference cannot be blurred or underestimated. The second is whether Chevron consists of two steps or only one step. I demonstrate that, as a typical process of avoidance disagreement, the Chevron test is inherently divided into two distinct steps.