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Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 115 Mich. L. Rev. (forthcoming 2017), available at SSRN.

This test post has several paragraphs, but NONE of them should be passed to zeta because introparagraph limit is zero. Kent Barnett and Chris Walker begin this fascinating article by describing the Chevron doctrine and its history. In its landmark 1984 opinion in Chevron v. NRDC, the Supreme Court announced a new, seemingly more deferential doctrine that it instructed lower courts to apply when they review agency interpretations of the statutes they administer. The Chevron opinion is one of the most cited opinions in history. It has been cited in “nearly 15,000 judicial decisions and in over 17,000 law review articles and other secondary sources.” (P. 2.)

Barnett and Walker agree with most scholars that the Supreme Court’s “choice to apply Chevron deference, as opposed to a less-deferential doctrine or no deference at all, does not seem to affect the outcome of the case.” (P. 4.) They note that the Supreme Court did not even mention Chevron in three-quarters of the cases in which it reviewed agency statutory interpretations during the twenty-two-year period immediately after it issued its opinion in Chevron. They then report the findings of their study—the largest empirical study of circuit court applications of Chevron ever undertaken. As they characterize the results of their study, what they call Chevron Regular seems quite different from Chevron Supreme.

Barnett and Walker read, analyzed, and coded 1330 opinions issued by circuit courts between 2003 and 2013. Their dozens of findings are surprising in many ways. I will discuss just the five that I found most surprising. First, “agency statutory interpretations were significantly more likely to prevail under Chevron deference (77.3%) than Skidmore deference (56.0%) or, especially, de novo review (38.5%).” (P. 5) (footnote omitted). Second, circuit courts upheld agency interpretations more frequently when they applied Chevron to interpretations adopted through informal means (78.4%) than to interpretations adopted in notice and comment rulemakings (74.2%). Third, when circuit courts applied Chevron, they upheld longstanding interpretations far more often (87.6%) than recent interpretations (74.5%) or changed interpretations (65.6%). Fourth, circuit courts varied greatly with respect to the proportion of cases in which they applied Chevron to agency statutory interpretations—from a high of 88.9% for the D.C. Circuit to a low of 60.7% for the Sixth Circuit. Fifth, circuit courts also varied greatly with respect to the proportion of cases in which they upheld agency statutory interpretations, albeit not with a high correlation between their rates of outcomes and their rates of invocation of Chevron. The First Circuit upheld interpretations most frequently (83.1%); the Ninth Circuit upheld interpretations least frequently (65.5%), while the D.C. Circuit was around the middle (72.6%).

Barnett and Walker are appropriately cautious in drawing inferences from their findings. Their findings raise far more questions than they answer. Here are just a few.

First, the findings are a major disappointment to those of us who initially saw in Chevron the potential for greater consistency and predictability in the process of judicial review of agency statutory interpretations. We have long been disappointed with the massive inconsistencies in the Supreme Court’s approach to Chevron, but many of us believed (or at least hoped) that circuit courts were applying Chevron in a relatively consistent and predictable way. We were wrong. Circuit court applications of Chevron are at least as inconsistent, unpredictable, and incoherent as Supreme Court applications of Chevron. Those findings raise the question of whether Chevron can, or should, continue to exist as a review doctrine.

Second, whatever Chevron means in circuit courts, the circuit court version differs from the Supreme Court version in many ways. The glaring inconsistencies between the Supreme Court’s approach to Chevron and the approach (more accurately the approaches) of the circuit courts raise the question whether a doctrine can, or should, survive in circuit courts when it bears no relation to the version of the doctrine that exists in the Supreme Court.

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Cite as: Christopher Walker, Testing Number of Paragraphs Passed to Zeta, JOTWELL (January 1, 2017) (reviewing Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, 115 Mich. L. Rev. (forthcoming 2017), available at SSRN),