In Search of the Modern Skidmore Standard

This Article offers a comprehensive examination of the Skidmore standard of judicial review as applied by the courts in the period since the Supreme Court revitalized Skidmore in United States v. Mead Corp. The Article documents an empirical study of five years worth of Skidmore applications in the federal courts of appeals. In the study, we evaluate two competing conceptions of Skidmore review that are apparent from the Supreme Court’s post-Mead jurisprudence—the independent judgment model and the theoretically more deferential sliding-scale model—and demonstrate that the appellate courts overwhelmingly follow the sliding-scale approach. Also, we document that Skidmore review is much more deferential to agency legal interpretations than indicated by two other, significantly more limited studies, with agency interpretations prevailing in more than sixty percent of Skidmore applications. Drawing from the Skidmore applications studied, we analyze qualitatively how the appellate courts apply the Skidmore standard as a sliding scale and identify where those courts are struggling to make sense of Skidmore’s dictates within that model. To resolve the lower courts’ difficulties, we propose reconceptualizing Skidmore’s sliding scale as balancing comparative agency expertise against the potential for agency arbitrariness across three attitudinal zones. Finally, we note several burgeoning issues concerning the scope of Skidmore’s applicability and offer preliminary thoughts for addressing those questions.