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Confusion in the Circuit Courts: How the Circuit Courts Are Solving the Mead-Puzzle by Avoiding It Altogether

Daniel S. Brookins
85 Geo. Wash. L. Rev. 1484

Chevron deference is possibly the most discussed legal issue in recent history. Despite this prolific scholarship, relatively little empirical attention has been devoted to Chevron’s impact in the circuit courts. To shed light on the situation in the circuit courts, this Essay addresses the issue of how circuit courts handle the “Mead-puzzle” in cases where a federal agency has informally interpreted a statute it administers. After presenting findings from an empirical review of circuit court decisions, this Essay argues that Chevron avoidance is now the norm in the circuit courts. In fact, Chevron avoidance is so abundant that it is distorting agency win rates for informal interpretations that receive Chevron deference. Chevron avoidance flourishes because courts are still avoiding the confusion associated with Mead and Barnhart. To remove that confusion, this Essay argues that Chevron should be limited to legislative rulemaking and formal adjudication.

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