The Chevron Doctrine through the Lens of Comparative Law: Introduction to a Symposium

Guest Blogger

For the Balkinization Symposium on The Chevron Doctrine through the Lens of Comparative Law

Susan Rose-Ackerman & Oren Tamir

Constitutional law commentaries regularly include references to foreign law. Judges occasionally cite foreign sources in their judgments (sometimes triggering fierce disagreements about the legitimacy of that practice). Litigators make comparisons in their briefs. Constitutional law scholars of different stripes also consider how other nations adjudicate constitutional disputes and distribute constitutional powers. Foreign sources even occasionally prove central to debates outside the courts and in constitutional politics itself.

However, in the adjacent field of administrative law, attention to comparative or transnational practice is strikingly absent. Indeed, judges seldom reference foreign administrative law and fail to ask themselves, for example, how the laws and administrative structures of different nations might contribute to the interpretation of the APA. Litigators similarly don’t build their arguments around attempts to learn from other jurisdictions. Even the growing scholarship in administrative law that takes comparative practice seriously seems quite far from the center of scholarly administrative law discussions, both around the world but especially in the United States. 

Therefore, for comparativists, it might seem an unexpected positive endorsement to find a reference to foreign administrative law in nothing less than a Supreme Court opinion—perhaps for the first time since the 1930s. More specifically, in his opinion last Term dissenting from a denial of cert in Buffington v. McDonough, Justice Gorsuch explicitly referenced the fact that many—if not most—foreign jurisdictions don’t have a doctrine similar to Chevron, which instructs courts to defer to reasonable interpretations by agencies of open-ended statutes. As our own work confirms, Justice Gorsuch is quite clearly correct. If you look near and far, you will very likely not find anything exactly like Chevron abroad.

But what might have been a moment of celebration for those, likeus, who believe that comparative administrative law has much to offer, ended up instead raising danger flags. For in Buffington, Justice Gorsuch wasn’t invoking comparative administrative law to try to understand, seriously and in a nuanced way, what might explain cross-national divergences (or even justify them). Why is it, in other words, that other countries don’t have something exactly like Chevron? Justice Gorsuch used the lack of comparative parallels to Chevron very aggressively: as just another reason to question Chevron. Indeed, his dissent from a denial of cert was all about how the Court was wrong not to take up the question of Chevron’s continued validity in the case at hand.

We think there is something much too quick—if not seriously wrong—in the use of comparative law exemplified in Justice Gorsuch’s opinion in Buffington. The fact that other countries don’t have anything exactly like Chevron is not an argument for overturning Chevron or even for significantly cutting it back. There are many strong reasons that can both explain and justify why other systems lack Chevron and why the U.S. has it, reasons that Justice Gorsuch has emphatically ignored. (Indeed, one of us (Rose-Ackerman) was even troubled to see her co-authored article on judicial review of executive policymaking misused to buttress such claims.

Justice Gorsuch’s reference to other legal systems in Buffington also disregards the fact that some countries appear to be moving closer to something analogous to Chevron as the law develops in their own respective modern regulatory welfare states. Indeed, in some jurisdictions, judiciaries are explicitly recognizing the legitimacy of administrative interpretations of legal terms, not as executive overreaching, but as a reasonable recognition of the nature of policy delegation in a complex world.

To put our intuition more succinctly: Justice Gorsuch was right to invoke comparative administrative law. But he was wrong—potentially deeply so—in his rather off-hand reference to comparative law, ignoring the way that comparative administrative law can shed a more nuanced light on the issue of Chevron and interpretive deference more broadly.

Fortunately, we think it is not too late for a more responsible effort to consider Chevron deference through the lens of comparative law. There are two reasons for this. First, as is well known, the Court is about to rule on the question it had declined to take on in Buffington—namely, the fate of Chevron deference—in a case called Loper Bright Enterprises, set to be heard later this Term. Thus, it is not farfetched to think that the Court might be drawn to give comparative administrative law another look, and possibly ask some of the more subtle questions that Justice Gorsuch failed to ask in Buffington about what cross-national comparison can and should tell us about the themes underlying Chevron. Second, although the field of comparative administrative law is hardly a widespread area of legal expertise in the United States, it is, nonetheless, a growing and dynamic field worldwide, attracting more voices and perspectives from diverse scholars working in different countries and jurisdictions. There is, in short, a reservoir of scholarly knowledge that can respond well to the challenge Justice Gorsuch has highlighted, but we believe failed to execute, by looking at Chevron comparatively today.

And so, it seemed to us that one way to seize the moment was to organize a wide-ranging symposium on the issue of interpretive deference and the Chevron doctrine from a comparative perspective. It is our hope that that this sort of symposium will give readers (including, perhaps, the Court) at least a taste of the kinds of questions that a responsible and nuanced comparative inquiry into this topic should involve. And beginning today, and with many thanks to Jack Balkin for hosting us on Balkinization, this is what we are happy to launch.

We invited scholars of public law from nine different countries to reflect on how their courts review executive agencies’ exercise of discretion in the light of open or ambiguous statutory language. Our aim was to ask these scholars to discuss key points that we think Justice Gorsuch neglected in his Buffington opinion when drawing comparative parallels. First, the fact that a country’s underlying constitutional structure has important implications for the relationship between the administration, the legislature, and the public—and the judiciary. As a result, we invited scholars based in both parliamentary and presidential systems, and their variants. These include some countries influenced by the Westminster model, others that embody other parliamentary models, as well as a presidential system that differs substantially from the U.S. Second, the symposium also highlights how judicial review of the administration varies across systems with some having specialized administrative courts, such as Germany and France, compared with unified judicial systems, as in the U.S. and Brazil. Finally, a theme that cuts across the various contributions is that the U. S. separation-of-powers helped to produce the Administrative Procedures Act that, among other things, makes administrative rulemaking subject to a procedural framework requiring public consultation and reason-giving. Although public consultation and reason-giving occur everywhere, their legal status is only sporadically established around the globe. It is also much more episodic in practice. Judicial deference to executive policy choices can be more easily justified if the executive itself must justify its actions not just to the courts but to the public as well.

Of course, this symposium has not covered the full range of interesting comparative dimensions, and we assume that some of our contributors are engaged in debates with others in their home countries. Nevertheless, we hope that the posts will be sufficient to provoke responses from readers within the United States and beyond, as well as to challenge the quick and shallow use of comparative law, as Justice Gorsuch did in his Buffington opinion, to draw crisp and damming conclusions with respect to Chevron.

Each day starting tomorrow a new contribution will go live.  At the end, we will add a concluding essay—contextualizing the wide-ranging debate as it relates to contemporary discussions in the United States and highlighting issues in comparative law raised by the individual posts.

Here is a list of the participants in the order in which their posts will be available beginning tomorrow. The first post is by Professor Paul Daly, the University Research Chair in Administrative Law & Governance at Ottawa University, with a Canadian perspective. The second post is by Professor Carlos Ari Sundfeld and Professor Yasser Gabriel of FGV Sao Paulo Law School, discussing Brazil. The third contribution is by Professor Liz Fisher of Oxford University, which discusses England in comparison with both Australia and the US. The fourth, authored by Professor Janina Boughey of the University of New South Wales, focuses on Australia. A fifth contribution, zooming in on South Africa, is from Professor Geo Quinot from the Department of Public Law at Stellenbosch University. The sixth post on India is by Raeesa Vakil from the Centre for Asian Legal Studies in the Faculty of Law at the National University of Singapore. In the seventh contribution, Professor François Lichère of the Jean Moulin University of Lyon and Professor Duncan Fairgrieve of the University of Dauphine Paris will discuss the French approach. In contribution number eight, Professor Matthias Ruffert and Jasper Kamradt of Humboldt University will cover Germany and its relationship to the EU courts. Finally, in the ninth contribution by Professor Vincent Martenet of the University of Lausanne in Switzerland zooms out to provide a more general comparative outlook.

We very much hope that this symposium will be as interesting to readers as it was as interesting to us as organizers. Moreover, we hope that it provides a real opportunity to show, borrowing from Mark Tushnet, how the “possibilities” of comparative administrative law, at least when done in a nuanced and careful way, are meaningful—for the world and for the United States.

Susan Rose-Ackerman is the Henry R. Luce Professor of Law and Political Science, Yale University, Emeritus. She can be reached at Susan.rose-ackerman@yale.edu

Oren Tamir is a post-doctoral fellow at Harvard Law School and an Adjunct Professor and former Global Hauser Fellow at NYU School of Law. He can be reached at oren.tamir@nyu.edu or otamir@sjd.law.harvard.edu