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