Anticipating A New Modern Skidmore Standard by Kristin E. Hickman :: SSRN

The NRDC v. Chevron doctrine directed courts to give expert agencies the room to enforce their authorizing laws even where the language of the enabling law was unclear.

In Loper Bright v. Raimondo the Supreme Court claimed that territory for itself.  

But as Adrian Vermeule - a conservative defender of the administrative state - has observed Chief Justice John Roberts has reserved some room for deference to agency judgments.  Now Kristin Hickman develops a similar argument. - GWC

Anticipating A New Modern Skidmore Standard by Kristin E. Hickman :: SSRN

Anticipating A New Modern Skidmore Standard

Minnesota Legal Studies Research Paper No. 24-37

Duke Law Journal Online (forthcoming 2025)

17 PagesPosted: 3 Sep 2024

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Date Written: August 29, 2024

Abstract

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations "respect" or "weight" during judicial review under the Skidmore standard. Yet, the Court offered only a brief survey in Loper Bright regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as Skidmore review has been around in one form or another for eighty years. Yet, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that do not entirely square with some of the assumptions and reasoning in Loper Bright. The purpose of this Essay is to explore the world of Skidmore review of agency statutory interpretations and to anticipate some of the questions about Skidmore that will inevitably arise as courts apply it in future cases.