Deference Lotteries

Jud Mathews

91 Texas L. Rev. 1349

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When should courts defer to agency interpretations of statutes, and what measure of deference should agencies receive?  Administrative law recognizes two main deference doctrines—the generous Chevron standard, and the stingier Skidmore standard—but Supreme Court caselaw has not offered a bright-line rule for when each standard applies.

Many observers have concluded that courts’ deference practice is an unpredictable muddle.  This Article argues that it is really a lottery, in the sense the term is used in expected utility theory.  Agencies cannot predict which deference standard a court will apply or with what effect, but they have a sense for how probable the different possible outcomes are.  This Article presents empirical support for the “deference lottery” hypothesis, and then conducts a simple game theory analysis to understand how judicial review bears on agency behavior in statutory interpretation under deference lottery conditions.

The Article concludes that, in fact, the deference lottery can function as a flexible tool for managing agency behavior.  The lottery can curb agency opportunism by imposing a risk that agencies’ interpretations of statutes will face elevated scrutiny rather than Chevron deference.  This analysis offers a new perspective on deference doctrine, and in particular on the Supreme Court’s Mead decision, which sets out the standard for when Chevron applies.  Mead’s vagueness, widely derived as a bug, may in fact be a feature.  Still, the deference lottery can backfire badly if Skidmore is applied too stringently, as the Article shows.

Copyright’s Cultural Turn

Anupam Chander & Madhavi Sunder

91 Texas L. Rev. 1397

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Chander and Sunder review Julie E. Cohen’s Configuring the Networked Self: Law, Code, and the Play of Everyday Practice.

Purposive Hopes for Better IP

John M. Golden

91 Texas L. Rev. 1413

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Golden reviews Christina Bohannan & Herbert Hovenkamp’s Creation Without Restraint: Promoting Liberty and Rivalry in Innovation.

Taking Hearers Seriously

Burt Neuborne

91 Texas L. Rev. 1425

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Neuborne reviews Tamara R. Piety’s Brandishing the First Amendment: Commercial Expression in America.

No Mere “Matter of Choice”: The Harm of Accent Preferences and English-Only Rules

Braden Beard

91 Texas L. Rev. 1495

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In this Note, Mr. Beard discusses the legality of accent preferences and English-only rules.  Part I of this paper lays out the legal framework for these national origin discrimination claims.  Part II tells the stories of several plaintiffs who challenged English-only rules and accent-based hiring decisions.  Part III argues that many courts are doing a great disservice to the goals of Title VII in the way they treat these claims.  Part IV explores the harm caused by English-only rules and accent preferences based on the link between language and accent and one’s national origin.  To many immigrants, language and accent are very much a part of who they are, and are not as mutable as courts generally assume.  By forcing employees to cover their accents and native languages, employers attack and cause serious harm to the national origin identities of those employees.  Part V argues that after recognizing the severity of that harm, courts should analyze these claims differently and scrutinize employers’ business justifications more closely.

Can Insurgent Courts Be Legitimate Within International Humanitarian Law?

Parth S. Gejji

91 Texas L. Rev. 1525

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In this Note, Mr. Gejji argues that any interpretation of international humanitarian law (IHL) that seeks to legitimize insurgent courts leads to problematic solutions.  Part II identifies the goals motivating the project to legitimize insurgent courts, discusses why legitimizing insurgent courts within IHL could achieve these goals, notes some limiting principles of interpretation that should guide the discussion, and highlights the real dangers posed by insurgent courts.  Part III explores provisions in Common Article 3 of the Geneva Conventions 4 (CA3) and Additional Protocol II 5 (AP II) governing the passing of sentences in a non-international  armed  conflict (NIAC).  Part IV discusses the legal basis requirement found in CA3 and notes how a loose interpretation of this requirement allows for the existence of insurgent courts.  Part V, however, argues against a wholesale loosening of the legal basis requirement because of the impact such a loosening would have on state prosecution of insurgents and relates this discussion to the principle of the equality of belligerents.  Part VI examines the fair trial guarantees requirement in CA3, surveys the various methods of defining these guarantees, and proposes a definite list of guarantees that should apply in a NIAC.  Part VII disaggregates the analysis along the dimensions of the type of person to be tried in an insurgent court and the type of trial to occur in such a court, relates this disaggregation to the principle of the equality of belligerents, and argues that any interpretation of IHL that seeks to legitimize insurgent courts leads to problematic results.

Voluntary Incentive Auctions and the Benefits of Full Relinquishment

Michael Selkirk

91 Texas L. Rev. 1561

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In February 2012, the Federal Communications Commission (FCC) passed the Middle Class Tax Relief and Job Creation Act of 2012, authorizing the FCC to use voluntary incentive auctions as a mechanism for repurposing spectrum.  These auctions give television broadcasters, to which spectrum is currently tethered, the option to voluntarily sell their allocated spectrum back to the government.  The relinquished spectrum can then be relicensed for multiple uses and re-auctioned to companies that supply mobile data plans.  To participate, broadcasters have the option of (1) relocating from their current channel to a new channel that will be shared with another auction participant, (2) relocating to a new (but perhaps less desirable) frequency, or (3) fully relinquishing their spectrum.

In this Note, Mr. Selkirk argues that, from a policy and economic perspective, the third option—full relinquishment—best accomplishes the goal of reallocating spectrum.  Part II discusses the modern regulatory framework, focusing on the inadequate mechanisms for repurposing spectrum for higher value use and introduces the voluntary incentive auction.  Parts III and IV provide an overview of the Middle Class Tax Relief and Job Creation Act, and argue that full relinquishment is the optimal broadcaster choice to help curb the spectrum inadequacies facing the nation.  Part V outlines possible incentives to coax broadcasters to fully relinquish and program on other mediums.

The Wires Go to War: The U.S. Experiment with Government Ownership of the Telephone System During World War I

Michael A. Janson & Christopher S. Yoo

91 Texas L. Rev. 983

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One of the most distinctive characteristics of the U.S. telephone system is that it has always been privately owned, in stark contrast to the pattern of government ownership followed by virtually every other nation.  What is not widely known is how close the United States came to falling in line with the rest of the world.  For the one-year period following July 31, 1918, the exigencies of World War I led the federal government to take over the U.S. telephone system.  A close examination of this episode sheds new light into a number of current policy issues.  The history confirms that natural monopoly was not solely responsible for AT&T’s return to dominance and reveals that the Kingsbury Commitment was more effective in deterring monopoly than generally believed.  Instead, a significant force driving the re-monopolization of the telephone system was the U.S. Postmaster General, Albert Burleson—not Theodore Vail, president of AT&T.  It also demonstrates that universal service was the result of government-imposed emulation of the postal system, not, as some have claimed, a post hoc rationalization for maintaining monopoly.  The most remarkable question is, having once obtained control over the telephone system, why did the federal government ever let it go?  The dynamics surrounding this decision reveal the inherent limits of relying on war to justify extraordinary actions.  More importantly, it shows the difficulties that governments face in overseeing industries that are undergoing dynamic technological change and that require significant capital investments.