To: John F. Dowd who wrote (14982 ) 12/17/1997 3:38:00 AM From: Gerald R. Lampton Respond to
>Monopoly by size was shot down a long time ago . . .Chevron: Chevron U.S.A. Inc. v. Natural Resources Defense Council is the Erie-effect applied to reading. It had long been the duty of the Court to say what statutes mean, whether administrative law statutes or not. Over time, this practice became more contestable, as statutes became more extensive or complex, and as the constructive aspect of this interpretive practice became more plain. Interpretation seemed less law finding than law making, and this law making by courts raised an illegitimacy cost. In Chevron, the Court acknowledged this cost, at least in the context of ambiguous statutes. And to avoid it, the Court established a rule that shifted interpretive law making with ambiguous statutes to the agencies charged with the implementation of those statutes. The stronger democratic pedigree of those agencies, the Court wrote, justified their engaging in this law making practice rather than the Court. As applied to individual rights, however, the formulation is much more familiar. With 'non-preferred' federal rights--for example, the right to liberty under the Due Process Clause--an individual has a right to liberty, unless the government can show a justification to invade that right. With economic liberty, the necessary showing is quite slight. With the liberty to travel, the necessary showing is quite heavy. In either case, the point is this: Regardless of how strong the showing must be, the mechanics of both state and individual rights is the same. If the government cannot make a sufficiently strong showing, then the defaults are to the liberty or immunity protected in the right.
