The most famous case in administrative law, Chevron U.S.A. v. Natural Resources Defense Council, Inc., has come to be seen as a counter-Marbury, or even a McCulloch v. Maryland, for the administrative state. But in the last period, new debates have broken out over Chevron Step Zero — the initial inquiry into whether Chevron applies at all. These debates are the contemporary location of a longstanding dispute between Justice Scalia and Justice Breyer over whether Chevron is a revolutionary decision, establishing an across-the-board rule, or instead a mere synthesis of preexisting law, inviting a case-by-case inquiry into congressional instructions on the deference question. In the last decade, Justice Breyer’s case-by-case view has enjoyed significant victories. Two trilogies of cases — one explicitly directed to the Step Zero question, another implicitly so directed — suggest that the Chevron framework may not apply (a) to agency decisions not preceded by formal procedures and (b) to agency decisions that involve large-scale questions about agency authority. Both of these trilogies threaten to unsettle the Chevron framework, and to do so in a way that produces unnecessary complexity for judicial review and damaging results for regulatory law. These problems can be reduced through two steps. First, courts should adopt a broader understanding of Chevron’s scope. Second, courts should acknowledge that the argument for Chevron deference is strengthened, not weakened, when major questions of statutory structure are involved.
Issue 2
Reviewing Premarital Agreements to Protect the State’s Interest in Marriage
Courts and commentators have struggled with the question of whether substantive review of premarital agreements is necessary and, if so, why. Those who eschew substantive review generally equate it with legal paternalism. To the extent that the justification for substantive review rests on notions of cognitive limitations and bounded rationality, it is subject to the criticisms of legal paternalism in general.
Stronger support for substantive review can be found in notions of the public interest in marriage. Furthermore, a focus on the state’s interest in marriage would enable lawmakers to more narrowly tailor the scope of review to protect that interest without unnecessarily infringing on the freedom to contract. The question of the state’s interest in marriage can be defined prospectively and in more concrete terms than the question of whether the parties made a rational decision.
This Note begins by reviewing the historical and current status of premarital agreements concerning the division of property and provision of support following divorce. An analysis of recent court decisions and legislation reveals the extent to which the law continues to monitor the substantive fairness of premarital agreements. Next, the Note examines the arguments for and against paternalism in the premarital context by reviewing recent scholarship on behavioral decision theory. It concludes that procedural safeguards can adequately protect against irrational decisionmaking. Finally, the Note looks at the state’s interest in marriage, how premarital agreements implicate that interest, and ways to efficiently protect that interest.
The Concealmeant of Religious Values in Judicial Decisionmaking
Religious beliefs and values can play a significant and potentially necessary role in the judicial disposition of cases, particularly those in which the positive law is meaningfully underdeterminate. With some exceptions, however, the permissible role of such beliefs and values in various stages of the judicial process is not often appropriately addressed within public and even academic circles. To the contrary, the issue tends by most commentators to be either largely overlooked, perhaps due to its delicacy or complexity, or categorically disposed of pursuant to a debatable theory of public discourse or a distinctive reading of the Constitution’s religion clauses. The central thesis of this Essay is that the relationship between judging and religious influences, as a result of these and other circumstances, is one defined substantially by concealment, much of it unconscious, rather than by truly principled and effective regulation. The Essay’s purposes, accordingly, are to develop this thesis more fully; to examine its chief consequences, especially for the legitimacy of judicial decisionmaking; and, to the extent that these consequences are unfavorable, to suggest some modest corrective measures.