James D. Ridgway (The George Washington University Law School) has posted Toward a Less Adversarial Relationship between Chevron and Gardner (University of Massachusetts Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
In twenty-five years of judicial review of veterans benefits claims, the courts have failed to reconcile the interpretive canons of veteran friendliness and deference to the agency’s policy making role. This article argues that the courts must develop a coherent relationship between these doctrines by recognizing that each are core values of veterans law. First, it explores the history and nature of these two doctrines that are central to veterans law. Then, It considers how the canons are situated in the spectrum of fact- and value-based judicial review. Ultimately, separation-of-powers principles and the legislative history of the Veterans Judicial Review Act suggest that neither canon was intended to automatically trump the other. Accordingly, this article suggests several approaches as to how the courts’ jurisprudence can evolve towards recognizing clearer roles for both canons in developing the best possible adjudication system for veterans.