Publication Title

Northwestern University Law Review


certification of state law, Chevron deference, federalism, rule-making

Document Type



This Article looks to the federalism context and draws on the federal courts' experience adapting to the Court's landmark decision in Erie Railroad Company v. Tompkins. Much like Brand X, the Court's Erie decision, which commanded federal courts to apply state law in all cases not governed by positive federal law, significantly reduced the lawmaking power of the federal courts by putting the federal courts in the position of interpreting law that they cannot definitively construe. Although Erie seemed simple enough to adhere to when state law provided a clear answer, Erie posed a serious dilemma when federal courts faced the task of applying ambiguous state law that they could not authoritatively construe.

To try to resolve this dilemma, various mechanisms, including abstention and state certification procedures, emerged to enable federal courts to seek out a state's views on an unresolved issue of law before ruling on the issue. The federal courts and state courts, in other words, sought to cooperate and to interact with each other rather than simply passing like ships in the night.

This Article proceeds in five parts. Part I describes the two polar models the courts currently use when allocating interpretive power: Chevron's "deferential" model, which hands interpretive power over to the relevant agency, and the "independent judgment" model, which leaves statutory interpretation in the hands of the courts. Part II describes the state of the law prior to Brand X in terms of the relationship between these two competing models and principles of stare decisis. Part II then explains how Brand X broke away from prior Supreme Court precedent by-for the first time ever-expressly sanctioning the notion that a Chevron-eligible agency can overrule a court's own independent declaration of what the law means.

Part IV proposes two concrete suggestions for how courts could move toward an interactive approach. First, drawing on an analogy to abstention and state certification procedures used in the federalism context, Part IV proposes that courts become increasingly willing to invite and consider agency views rather than blindly issuing a judicial construction of a statute that the agency has yet to construe. The primary jurisdiction doctrine, which allows courts to refer a matter back to the agency for its initial determination, could serve as one potential mechanism for soliciting agency views. The ability of the lower federal courts to invite agencies to file amicus curiae briefs, however, provides an even more promising mechanism for soliciting agency views. Second, Part IV also proposes that once courts solicit agency views by invoking the primary jurisdiction doctrine or inviting agency amicus briefs, the courts then must give due consideration to the agency's views, even if they are set forth in a non-binding format that does not command Chevron deference.

Finally, Part V considers potential objections to the interactive model proposed here. Objections addressed in Part V include: whether it is proper to fashion interpretive rules in order to minimize friction between the branches; whether the interactive approach would minimize agency incentives to engage in notice-and-comment rulemaking; whether an interactive approach would muddle the law of deference; and whether the interactive approach would represent an abdication of the courts' role in the interpretive process by cutting courts out of the interpretive process and actually minimizing interaction between courts and agencies. This article concludes that these objections are not fatal and that it would be worthwhile to encourage courts and agencies to interact with each other in the wake of BrandX.



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