Document Type

Article

Publication Title

Yale Law Journal

Abstract

This Comment critiques Estreicher and Revesz' underlying assumptions about our legal system and their proposed standard for permissible nonacquiescence. We argue that their proposal upsets the balance between agencies and courts by rendering the judiciary essentially powerless to enforce congressional limitations on agency conduct for long periods of time. Part I discusses Estreicher and Revesz' central premise that circuit court precedent is so tentative and malleable that it is not entitled to authoritative force. Part II disputes their assessment of the costs and benefits of nonacquiescence, and shows that their analysis of the role of the circuit courts leads them to overstate the benefits of nonacquiescence while underestimating the resulting systemic inequalities. Part III builds on this analysis to show that there is no basis for the core assumption of Estreicher and Revesz' legal analysis: that nonacquiescence is implicit in the "congressional choice of administrative government." Finally, Part IV argues that under the existing structure of the judicial branch, their proposed standard encourages agencies to engage in conduct that violates separation of powers as well as due process and equal protection principles.

First Page

801

DOI

https://doi.org/10.2307/796638

Volume

99

Publication Date

1990

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