Show notes
The Eighth Annual Executive Branch Review Conference was held on April 28, 2020 via an online webinar. The second panel was titled "Restoring Judicial Power: Righting the Ship of Judicial Review and Deference Doctrines."
One aspect of almost all constitutional systems is judicial deference, which could be loosely defined as the concept that certain matters are best decided by entities other than the judiciary. While nearly all agree that some level of judicial deference is necessary in our current constitutional system, the extent to which the Judiciary should practice deference remains a highly complex and controversial area of constitutional law. During the past several decades, the rise of the administrative state in the federal government has only added fuel to this ongoing legal debate. On one side, many believe that the administrative state is better equipped to deal with particular matters, because members of the administrative state will have more expertise in specific subject matter areas than federal judges. Many of these proponents of deference support Supreme Court cases that carved out the well-known deference doctrines of Chevron and Auer. On the other hand, skeptics of excessive judicial deference criticize much of the Supreme Court’s related jurisprudence. They instead argue that the increasing number of "cases and controversies" decided by regulators, enforcers, and adjudicative bodies within the administrative state, that are neither elected nor directly subject to the political process, has led to a less democratic form of government in America. Proponents of judicial power taking a less deferential approach believe that a strong doctrine of judicial review is a vital way to ensure that we truly have a government of the people, by the people, and for the people. That said, is there a way to prevent a less-deferential judiciary from becoming overly ambitious?
This distinguished panel of experts will be discussing and debating this controversial and engaging issue. The panel will provide helpful information to attorneys practicing many fields of law, in particular, attorneys working in administrative, constitutional, and regulatory law.
Featuring:
Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC
Prof. Kristin E. Hickman, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law School
Prof. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of Law
Dean Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, George Washington University Law School
Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
Moderator: Dean Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
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