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October 16, 2006


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If Chevron is merely a voting rule, how is a district court judge to apply it?


I do not see the proposed resolution, which is based on a strong distinction between "doctrinal" and "institutional" modes of decisionmaking, as much more than a temporary fix, although it could halt what the authors obviously see as the steady erosion of the Chevron rule. That rule is unstable for the reasons cited, principally the unresolved incompatibility between the levels at which it is expected to function.

However, in my view this is only a sample from a veritable continent of similar doctrinal inadequacies throughout the law. Inter-level incompatibilities for legal decisionmaking, like "best legal outcome" versus "reasonable outcome requiring deference," are pervasive throughout the judging enterprise.

Judges' decisions in many legal areas depend very often upon unstated presuppositions that banish into the background a range of such incompatibilities, thus drawing attention away from the immediate decision's inadequate efforts to resolve them.

Judge Posner's lament concerning the limits of intellect is important and appropriately sombre concerning what can be expected from the legal enterprise in this connection.

But there is nothing in the voting rule proposal (and this is the best thing about it, in my view) that prevents individual judges from struggling to co-ordinate the two regions noticed by the authors in connection with the Chevron question within a single doctrinal approach that could satisfactorily apply to a case or a group of such cases.

One might think that if a better doctrine were to emerge, one that potentially forged a contrast between the two regions that would work in a satisfactory way over a broad range of similar cases, that doctrine could become so influential that the voting process would come to seem superfluous. It is, after all, merely a concession to a problem that has not yet been solved satisfactorily. If the incompatibility could be overcome doctrinally, the voting rule could be dispensed with.

I think it is important that the fallacy of unreformability of doctrine not be committed in connection with legal puzzles like this. If a clear-eyed view could be taken of the actual reach of legal doctrines in resolving conventional problems conventionally, I believe that view would reveal more that is unresolved than resolved across the multi-layered social regions that come into view when resort to the law is had for its wisdom. The contemporary limitations on legal intellect may someday come to seem as quaint as trial by ordeal seems to us. We should be careful that our designs for producing outcomes efficiently not foreclose unnecessarily the possibility that better legal doctrines remain locked up in the future with no particular date for their emergence into action.

Because the voting rule leaves open the possibility that an emergent doctrine which resolves the issue at hand might make the vote superfluous, but only because of that openness, I would give it my endorsement.


What about the non-delegation doctrine? Why should executive branch employees have *any* authority to legislate? And that, indeed, is what they do.

Is there any answer other than the pragmatic modern-world-is-too-complex? It didn't have to be that way. We don't have to have hundreds of executive administrative agencies promulgating millions of administrative rules (legislating) and then interpreting their own rules. It is begging the question to answer "complexity of our modern world." The executive branch *made it that way*.

The U.S. Constitution clearly provides that only the legislative branch may legislate and the legislative branch may not delegate this authority to any other branch.

J. Michael Slocum

I am assembling a series of weblinks for a course that I am co-teaching on Public Administration. I have put the Ludig von Mises site on the links as a "right" wing site, and need the equivalent "left" wing site. Any suggestions? I am not advocating, just illustrating. Masters level course.

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