Other Views of the Cathedral

Many other authors have attempted to define deference, though none of those definitions were grounded in a full description of the practices of US federal courts. Many of those other efforts were overtly normative, aimed at deriving an ideal structure for deference that can be used to criticize actual practices. Nonetheless, some of those efforts offer valuable insights even for a purely descriptive project. We reject efforts to limit the definition of deference only to instances in which the deferring body changes its decision in some way; mere consideration of another’s decision is sufficient to constitute deference. From Paul Horwitz we take the idea that deferees must be attentive to their role in a system of deference, and from Aileen Kavanaugh we take the idea that deference can sometimes be justified on prudential, or strategic, grounds. But consideration of others’ views does not change our basic definition of deference as: “The giving by a legal actor of some measure of consideration or weight to the decision of another actor in exercising the deferring actor’s function.”

The Many Faces of Federal Court Deference

US federal courts identify many of their doctrines and activities as acts of deference. This book uses those identifications as the raw material for its inductively derived definition of and framework for deference. Doctrines and practices identified as deference arise in connection with appellate review of findings of fact of legislative, executive, and judicial bodies (including juries); review of legal findings of those bodies; review of policymaking, or discretionary, judgments of those bodies; and review of (or refusals to review) actions of state courts. The scope of deference ranges from total (abstention or absence of review) or near-total (rational basis review of legislative action or jury verdicts) to minimal (so-called Skidmore deference, under which agency legal interpretations receive whatever weight they merit all things considered). Many of the same considerations noted by federal courts appear in legal contexts outside the United States, such as the margin of appreciation doctrine employed by some international tribunals and Wednesbury review in the United Kingdom. This chapter seeks to identify enough instances of deference to allow generalizations about the nature, scope, and reasons for deference that are developed in subsequent chapters.

Introduction

Deference is a concept and practice fundamental to any real-world legal system. It lies at the core of every system of precedent, appellate review, federalism, and separation of powers. Notwithstanding its importance, deference has not heretofore been systematically analyzed, apart from its applications in specific settings. Until 1999, “deference” did not even merit an entry in Black’s Law Dictionary. This book aims to start a conversation about the concept and practice of deference. It hopes to bring the concept of deference to the forefront of legal discussion; to identify, catalogue, and analyze at least the chief among its many manifestations and applications; to set forth the many and varied rationales that can be and have been offered in support of (some species of) deference in different legal contexts; and thereby to provide a vocabulary and conceptual framework that can be employed in future discussions. The book’s methodology is descriptive and inductive: It identifies the actual practices that US federal courts identify as instances of deference and builds its account from that material. Subsequent chapters explore whether and how a definition and vocabulary derived in that manner can be applied in wider contexts.

Extensions

Can a definition of and vocabulary for deference derived inductively from the practices of US federal courts usefully describe other practices, or practices of other institutions? We think so. The basic vocabulary of and framework for deference derived from federal court practice can be used to analyze judicial precedent (which only occasionally is described by courts as a form of deference), the treatment of judicial decisions by legislative and executive actors, the use of both formal and informal precedent in legislative and executive institutions, and the widespread but often controversial practice of judicial deference to decisions of foreign tribunals. All of these activities involve mandatory or discretionary deference, meaning that one actor considers and/or gives weight to prior decisions in carrying out the deferring actor’s legal functions. All of these practices can be explained or justified at least in part by the categories of legitimation deference, epistemological deference, economic deference, signaling deference, or prudential/strategic deference. The framework for deference derived from the practices of federal courts thus proves to have general utility across a broad range of practices and institutions.

Defining Deference

Ordinary language often treats deference as an all-or-nothing matter; if one defers to another’s judgment (for example, about where to go to dinner), one effectively lets the other party make the decision. Very few of the doctrines identified by federal courts as instances of deference meet this standard. Instead, the term “deference” is applied in a wide range of circumstances involving varying weights, ranging from Skidmore deference, in which the decision-maker must at least take into account the prior decision but need not give it any pre-fixed degree of weight, to rational basis review, in which the prior decision controls unless it is so absurd that no reasonable person could have reached it on any conceivable set of facts. Any inductively derived definition of deference must capture this range. Accordingly, deference is best defined through an inductive methodology such as “The giving by a legal actor of some measure of consideration or weight to the decision of another actor in exercising the deferring actor’s function.” Deference can be mandatory, because it is commanded by positive law, or discretionary, and it can be justified in particular settings for reasons of legitimacy (legitimation deference), accuracy (epistemological deference), cost (economic deference), or communication (signaling deference).