Saturday, January 19, 2019

Law Finding (The Chevron Framework) and Fact Finding in Trials (1/19/19)

As a trial lawyer and an observer of statutory interpretation, I have observed some parallel in statutory interpretation (a law finding process) with fact finding in trials.  The Chevron Framework,  illustrates this relationship.  The Chevron Framework is the framework developed based on Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) to test whether courts defer to an agency interpretation of law related to the congressional delegation of authority to administer an administrative agency..

The Chevron Framework allocates the law finding process between the court and a federal agency.  In traditional civil procedure theory, the trial fact finding process allocates fact finding between judge and jury.

While working on the current draft of a substantial revision to an earlier article today, I dropped a footnote in the Chevron Framework discussion for statutory interpretation that describes the phenomenon.  I thought I would offer that explanation in summary, but first state the Chevron Framework from the current draft of the revised article (footnotes omitted):
The First Step–called Step One–inquires whether the meaning of the statute is unambiguous?  Synonyms for unambiguous used in this First Step are plain and clear.  I generally use the word unambiguous but readers should be alert to the synonyms plain or clear used by other authors, some of whom I quote.  Ambiguity is determined by using the traditional tools of statutory construction.  If unambiguous, the agency interpretation in the regulation is irrelevant because the unambiguous meaning of the statute pre-empts the interpretive field.   
The Second Step–called Step Two–reached only if the text is determined to be ambiguous in Step One inquires whether the agency interpretation is unreasonable? Under this Second Step reached if the text is ambiguous (either on its own ambiguous text or by explicit delegation), the agency’s interpretation in the regulations is given deference so long as not unreasonable. The agency may choose between or among reasonable–or not unreasonable–interpretations within the scope of the statutory ambiguity (sometimes referred to as the Chevron space). Some have argued that, in practice, the Chevron two-step inquiry is often conflated into a single inquiry–deference is given if the regulation is reasonable without first doing the Step One drill; but, at least in my observation, Courts almost always pay homage to Step One before addressing reasonableness which is the Step Two inquiry.
[Footnote - have not yet decided exactly where in the text I will place the footnote]

   fn I take a brief detour to note that the Chevron Two-Step Framework is akin to the traditional roles of judge and jury in finding facts.  If on summary judgment or motion for directed verdict, the judge finds that there is only one reasonable interpretation of the facts, the judge awards judgment accordingly without the jury (either not submitting the fact issue to the jury or giving judgment notwithstanding the jury verdict).  That is analogous to Chevron Step One where, the judge finds, the facts are not ambiguous.  If the facts are ambiguous, then the judge goes to Step Two to permit the jury to interpret and find the facts within the scope of the ambiguity and judge will not disturb the jury finding unless it is unreasonable (that is outside the scope of the ambiguity).  That is analogous to Chevron Step Two.

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