Faculty Scholarship Digest

Christopher J. Walker



Christopher J. Walker, How to Win the Deference Lottery, 91 Tex. L. Rev. See Also 73 (2013), http://www.texaslrev.com/wp-content/uploads/Walker.pdf.

In this invited piece, Christopher Walker responds to Jud Mathews, Deference Lottery, 91 Tex. L. Rev. 1349 (2013). Mathews’s idea is that federal administrative agencies face a two-step lottery when advancing an interpretation of a statute because of uncertainty over which judicial review standard (Chevron or Skidmore) the court will apply in reviewing the agency interpretation. In his response, Walker accepts the lottery thesis, but suggests that agencies should think more strategically. He offers a playbook for agencies to win the deference lottery. Central to Walker’s view is that the lottery is not a win-or-go-home contest. Instead, it is a repeated game where courts and agencies engage in a dialogue with many opportunities to play again. Consequently, Walker thinks that tightening or loosening the lottery may not have as strong an effect on agency behavior as Mathews predicts.

Christopher J. Walker, Avoiding Normative Canons in Review of Administrative Interpretations of Law: A Brand X Doctrine of Constitutional Avoidance, 64 ADMIN. L. REV. 139 (2012).

This article considers the interaction of two important doctrines: the doctrine of constitutional avoidance (a canon of statutory construction that directs courts facing a statute with multiple reasonable interpretations “to avoid an interpretation that raises serious constitutional problems”) and the Chevron doctrine under which a court should defer to an agency’s construction of a statute it administers if the statute is ambiguous or silent and the agency’s reading is a “permissible construction.” These two directives can come into conflict with remarkable frequency. If a court faces a challenge to an administrative regulation that is a permissible construction under an ambiguous statute but that raises a serious constitutional question, what should a court do? Should it strike the regulation (ignoring Chevron deference) in order to avoid the constitutional question? Or should it apply Chevron and actually determine the constitutionality of the regulation (ignoring the constitutional avoidance doctrine)? As the article describes, the predominant answer among courts and academics has been that constitutional avoidance trumps. Chris argues that separation of powers concerns in fact mandate the opposite answer: Chevron should trump and constitutional avoidance should not apply.

The core of the separation-of-powers argument is that “Congress has delegated interpretive authority first and foremost to the agency,” an action, Chris argues, that cannot constitutionally be ignored merely for the prudential doctrine of constitutional avoidance. The article uses the Supreme Court’s 2005 decision in Brand X which bolstered Chevron by declaring a “presumption” that in an ambiguous statute “Congress ‘desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.’” The article carefully canvasses the constitutional arguments, while also suggesting that Chris’ approach gives each entity the task for which it is best suited: “Whereas courts are well equipped to decide whether a construction is actually constitutional, agencies often are in a better position to fill the holes in ambiguous statutes they administer with procedural and substantive safeguards that eliminate constitutional concerns.” A final section of the article surveys the potential real-world impact of Chris’ approach in a number of fields, including environmental protection, labor relations, immigration law, and national security.

Book Chapters

Chris Walker (w/David C. Frederick et al.), The Insider’s Guide to the Supreme Court of the United States, in Dana Livingston & American Bar Assoc. eds., ABA-CAL APPELLATE PRACTICE COMPENDIUM (ABA Publishing 2012).

This is a chapter in an a two-volume pracitioner’s guide to federal appellate practice. There is a chapter providing an “insider’s guide” to appeals in each of the eleven numbered Circuit Courts of Appeal, the D.C. Circuit, and the Federal Circuit. The first chapter, however, which Chris co-authored, provides the “insider’s guide” to the Supreme Court. It provides guidance and “top tips for practioners” from the certiorari stage through the merits, succinctly addressing everything from CVSG’s and GVR’s, to amicus briefs and rules governing the joint appendix, as well as pointing to other online and print resources that can guide new Supreme Court practitioners. Some law school Supreme Court clinics have already begun to incorporate the chapter into their curricula.