Gus Hurwitz headshot

Director of Law & Economics Programs

Justin (Gus) Hurwitz is an assistant professor of law and co-director of the Space, Cyber, and Telecom Law program at the University of Nebraska College of Law. His work builds on his background in law, technology, and economics to consider the interface between law and technology and the role of regulation in high-tech industries.

Antitrust

Administrative Law Antitrust

TOTM

Chevron and the Politicization of Law (or, Chevron Step Three)

A recent exchange between Chris Walker and Philip Hamburger about Walker’s ongoing empirical work on the Chevron doctrine (the idea that judges must defer to reasonable agency interpretations of ambiguous statutes) gives me a long-sought opportunity to discuss what I view as the greatest practical problem with the Chevron doctrine: it increases both politicization and polarization of law and policy. In the interest of being provocative, I will frame the discussion below by saying that both Walker & Hamburger are wrong (though actually I believe both are quite correct in their respective critiques). In particular, I argue that Walker is wrong that Chevron decreases politicization (it actually increases it, vice his empirics); and I argue Hamburger is wrong that judicial independence is, on its own, a virtue that demands preservation. Rather, I argue, Chevron increases overall politicization across the government; and judicial independence can and should play an important role in checking legislative abdication of its role as a politically-accountable legislature in a way that would moderate that overall politicization.

Read the full piece here.