Document Type

Working Paper

Publication Date

10-3-2007

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; Administrative Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

Deference the substitution by a decision maker of someone elses judgment for its own is a pervasive tool of constitutional doctrine But although it has been studied at more abstract levels of jurisprudence and at very specific doctrinal levels it has received surprisingly little general attention in constitutional scholarship This Article aims to fill that gapThis Article makes three primary contributions to the literature First it provides a careful examination of deference as a doctrinal tool in constitutional law and offers a taxonomy of deference In particular it suggests that deference can best be understood as relying on two separate but overlapping grounds deference on the basis of the legal authority of the deferee and deference on the basis of the deferees epistemic or knowledgebased authority Importantly this Article suggests that deference cannot be examined from the standpoint of the deferring institution usually the courts alone Rather we must also consider the obligations of deferees which should invoke deference only for those decisions reached in the full and fair exercise of their legal or epistemic authoritySecond the Article demonstrates the practical benefits of this richer understanding of deference by applying it to a recent case in which the Supreme Court confronted competing claims of deference Rumsfeld v Forum for Academic and Institutional Rights FAIR in which the Supreme Court rejected a challenge to the Solomon Amendment which requires law schools to provide access to campus for military recruiters In FAIR the Court faced claims of deference from Congress acting pursuant to its military powers and from the law schools which invoked deference both as expressive associations and as universities The Courts treatment of these competing claims to deference was unsatisfactory The Court gave too much deference to Congress and too little to the law schools In particular it failed to accord them the deference they deserved as universities which serve as vital First Amendment institutions in the universe of public discourse The Courts failure to soundly address these competing claims of deference bespeaks a larger failure to theorize the nature of deference and the occasions on which courts should defer Thus underequipped the Court was left at sea when confronting multiple institutions competing for deference in the same case At the same time the law schools themselves may have fallen short in meeting their own obligations as defereesFinally the Article shows that its examination of deference and of universities as First Amendment institutions lies at the intersection of two developing areas of constitutional scholarship the study of constitutional decision rules and the study of institutionally oriented approaches to the First Amendment It argues that these two emerging fields are linked by the concept of deference and might learn a good deal from each other

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