The Skidmore Compromise: Interpreting Skidmore as a Tiebreaker to Preserve Judicial Wisdom in the Era of Loper Bright lawreview - Minnesota Law Review
By MITCHELL ZAIC. Full Text. 'Law must be stable, and yet it cannot stand still.' Here is the great antinomy confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue, must find some path of compromise. – Judge Cardozo In the lawreview - Minnesota Law Review
By MITCHELL ZAIC. Full Text . ‘Law must be stable, and yet it cannot stand still.’ Here is the great antinomy confronting us at every turn. Rest and motion, unrelieved and unchecked, are equally destructive. The law, like human kind, if life is to continue, must find some path of compromise. – Judge Cardozo In the summer of 2024, the world of administrative law was upended when the Supreme Court overruled the Chevron decision. Chevron had long served as one of administrative law’s foundational cases and it had been the foremost vehicle by which Courts analyzed agency interpretations for decades. But suddenly, the case was gone . With its overruling, an old case has taken on new importance: Skidmore v. Swift . Skidmore is a short administrative law case from 1944 with modest facts. The decision, which can fit on three sheets of paper, briefly and arcanely stated that deference awarded to agency interpretations will “depend upon the thoroughness evident in [their] consideration, the validity of [their] reasoning, [their] consistency with earlier and later pronouncements, and all those factors which give [them] power to persuade . . . .” Eighty years later, these words are no less clear. Yet Skidmore has become more important than at any point in history, meaning a clear interpretation is needed now more than ever. This Note seeks to resolve the continued indeterminacy of Skidmore . It argues that the existing methods of interpreting Skidmore fall short and proposes a new path forward: the Skidmore tiebreaker. This interpretation of Skidmore would only be used by interpreters when judges are faced with interpretive ties that have no other method of resolution. Only then can judges resort to applying the agency’s interpretation. This method of interpreting Skidmore ensures that agency interpretations never overrule the best meaning of the statute, instead facilitating the judge in his or her interpretive quest. In addition, the tiebreaker continues the long tradition of respect for agency interpretations beyond that of the typical litigant. This Note explains the intricacies of the Skidmore tie-breaker and illustrates its application through comparison to similar rules inside and outside the law. It also considers and rebuts anticipated objections that could be brought towards the use of Skidmore as a tiebreaker, mainly that interpretive ties never occur and that the tiebreaker is merely Chevron under another name. This Note conclude s by urging the adoption of the Skidmore tiebreaker as a compromise for the future of administrative law. Tweet Share
Executive Summary
This article proposes a novel interpretation of the Skidmore v. Swift case, introducing the 'Skidmore tiebreaker' as a means to resolve interpretive ties in administrative law. The author argues that this approach ensures agency interpretations do not overrule the best meaning of a statute, while maintaining respect for agency expertise. The tiebreaker method is presented as a compromise for the future of administrative law, following the overruling of the Chevron decision.
Key Points
- ▸ The Skidmore v. Swift case has gained new importance after the overruling of Chevron
- ▸ The proposed 'Skidmore tiebreaker' method resolves interpretive ties by applying agency interpretations
- ▸ The tiebreaker approach aims to balance judicial wisdom with agency expertise
Merits
Preservation of Judicial Wisdom
The Skidmore tiebreaker ensures that agency interpretations do not overrule the best meaning of a statute, preserving judicial wisdom in administrative law
Respect for Agency Expertise
The tiebreaker approach maintains respect for agency interpretations, acknowledging their value in the regulatory process
Demerits
Potential for Subjectivity
The application of the Skidmore tiebreaker may be subjective, relying on judicial discretion to determine interpretive ties
Limited Applicability
The tiebreaker approach may not be applicable in all cases, potentially limiting its effectiveness in resolving administrative law disputes
Expert Commentary
The Skidmore tiebreaker offers a nuanced approach to resolving interpretive ties in administrative law, acknowledging the complexities of agency interpretations. While the approach has its limitations, it presents a compelling compromise for the future of administrative law. The tiebreaker method has the potential to promote more consistent and predictable outcomes, while maintaining respect for agency expertise. However, its application will require careful consideration of the subjective factors involved in determining interpretive ties.
Recommendations
- ✓ Adopt the Skidmore tiebreaker as a means to resolve interpretive ties in administrative law
- ✓ Develop clear guidelines for the application of the tiebreaker approach to ensure consistency and predictability
