2014 National Lawyers Convention
This panel will explore how judicial deference to agency decisionmaking has evolved since the seminal Supreme Court decision in Chevron v. NRDC and whether it is time to revisit the doctrine of "Chevron deference." The panelists will discuss questions such as whether Chevrondeference has led courts to take such a hands-off approach in litigation against agency action that the agencies have become an unaccountable fourth branch of government. Or is Chevron deference a doctrine that is necessary to keep courts from becoming policymaking bodies? They will discuss the real-world implications of Chevron deference from the perspective of regulated parties and whether there are any practical alternatives to Chevron deference. The panel will also explore related doctrines of judicial deference, such as so-called Auer deference, and whether lower courts have taken that deference beyond what the Supreme Court intended.
The Federalist Society's Litigation Practice Group presented this panel on "Time to Revisit Chevron Deference?" on Thursday, November 13, during the 2014 National Lawyers Convention.
- Prof. Jack M. Beermann, Harry Elwood Warren Scholar Professor of Law, Boston University School of Law
- Hon. Charles J. Cooper, Partner, Cooper & Kirk, PLLC, and former Assistant U.S. Attorney General for the Office of Legal Counsel
- Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia University School of Law
- Prof. Amy Wildermuth, Associate Vice President for Faculty, Senior Vice President Academic Affairs - Operations, University of Utah S.J. Quinney College of Law
- Moderator: Hon. Don R. Willett, Texas Supreme Court
- Introduction: Hon. Rachel L. Brand, Member, Privacy and Civil Liberties Oversight Board; Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce; and former Assistant U.S. Attorney General for Legal Policy United States Department of Justice; and Chairman, Litigation Practice Group
Mayflower Hotel Professional Responsibility & Legal Education and Litigation Practice Groups Podcast
Steven Donziger, a self-styled social activist and Harvard educated lawyer, signed on to a budding class action lawsuit against multinational Texaco (which later merged with Chevron to become the third-largest corporation in America). The suit sought reparations for the Ecuadorian peasants and tribes people whose lives were affected by decades of oil production near their villages and fields. During twenty years of legal hostilities in federal courts in Manhattan and remote provincial tribunals in the Ecuadorian jungle, Mr. Donziger and Chevron’s lawyers followed fierce no-holds-barred rules. Mr. Donziger proved himself adept at influencing the media, Hollywood, and public opinion. He cajoled and coerced Ecuadorian judges on the theory that his noble ends justified any means of persuasion. And in the end, he won a $19 billion judgment against Chevon – the biggest environmental damages award in history. But the company refused to surrender or compromise. Instead, Chevron targeted Mr. Donziger personally, and its counter-attack revealed evidence of his politicking and manipulation of evidence. Suddenly the verdict, and decades of Mr. Donziger’s single-minded pursuit of the case, began to unravel.
International & National Security Law and Litigation Practice Groups Podcast
The Supreme Court decided a complex but important case on June 16, 2014, Republic of Argentina v. NML Capital, Limited. The Republic of Argentina issued bonds to American investors, correspondingly waiving its sovereign immunity and consenting to jurisdiction in New York State. Argentina subsequently defaulted on those bonds. Plaintiff bondholder NML did not participate in a renegotiation of the bonds and sued to prevent Argentina from paying other bondholders that agreed to settle their claims.
At issue were whether NML Capital could bring suit against Argentina under the Foreign Sovereign Immunities Act (FSIA) and the extent of discovery to which plaintiffs are entitled. In court, the United States sided with Argentina. Argentina asserted it should be able to block third party disclosure of its assets, since some assets might be sensitive diplomatic or military assets. The Supreme Court ruled, 7-1, that Argentina is subject to the FSIA, and thus liable to suit pursuant to it, and that American banks can be ordered to disclose Argentina’s assets in the U.S. as part of discovery in the default lawsuit. This decision has potential ramifications for government debt restructuring around the world. Our experts examined these and other possible effects of the decision.
- Prof. Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, Director, International & Comparative Law Programs, University of San Diego School of Law
- Prof. Thomas H. Lee, Leitner Family Professor of International Law, Director Graduate and International Studies, Fordham University School of Law