Jud Mathews (University of Illinois College of Law; Yale University Department of Political Science) has posted Deference Lotteries on SSRN. Here is the abstract:
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Scholars and lawyers have condemned current deference doctrine as an unpredictable muddle.They fault the Supreme Court for offering confusing standards as to when and how courts should defer to agency interpretations of statutes. This article agrees that courts’ choice of deference standards is unpredictable, but argues that this very unpredictability can create benefits as well as costs.This is because the deference regime is really a lottery, in the sense the term is used in game theory. agencies cannot know which deference standard a court will apply or with what effect, but they have a sense for how probable the different possible outcomes are. This article presents empirical support for the “deference lottery” hypothesis, and then conducts a simple game theory analysis to understand how judicial review bears on agency behavior in statutory interpretation under deference lottery conditions. The article concludes that, in fact, the deference lottery can function as a flexible tool for managing agency behavior.
Very interesting and highly recommended.