Sidebar

The first line of Kristin Hickman and Matthew Krueger’s article announcing that “Skidmore deference is back” brings to my mind those awful horror villains of the 1980s—like Jason from the Friday the 13th movies or Chucky from the Child’s Play series—who repeatedly returned to terrorize. The fact that the revival of Skidmore[1] triggers the memory of these bloodthirsty and unstoppable-against-all-odds villains will be no surprise to most administrative law practitioners and scholars (not to mention law students). Like Jason and Chucky, Skidmore is not just scary; it is a very messy business.

Skidmore deference—the standard of judicial review of agency legal interpretations articulated in Skidmore v. Swift & Co.[1]—is an old doctrine. The Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Counsel, Inc.[2] arguably rendered Skidmore irrelevant; but more recent Court pronouncements in Christensen v. Harris County[3] and United States v. Mead Corp.[4] resurrected Skidmore deference as an alternative to Chevron. Since Christensen and Mead, Skidmore has reemerged as a unique and frequently used standard of review. Yet while reams of scholarly articles evaluate Chevron and Mead, contemporary scholarship offers comparatively little analysis of Skidmore as a doctrine.