Structuring Skidmore After Loper Bright

The epochal Loper Bright decision overruled Chevron and established that courts must determine the best meaning of statutory text without being required to follow agency interpretations of ambiguous statutes. In determining the best meaning, courts must consider whether and how to apply Skidmore analysis. Skidmore calls for giving extra weight to agency interpretations of statutory text when it is appropriate to do so. This article addresses several issues involving Skidmore analysis that remain unresolved post-Loper Bright. So far, reviewing courts have often ignored Skidmore entirely, brushed it aside, or misapplied it. Court decisions before and after Loper Bright have not agreed upon a uniform structure for applying Skidmore. This article urges that courts must (rather than may) apply Skidmore analysis along with other familiar tools of statutory interpretation when seeking the best meaning of disputed statutory text. In addition, courts should engage with Skidmore without first determining whether the disputed text is ambiguous. The article further suggests that federal courts adopt a structure for applying Skidmore consistently across the wide variety of cases involving disputed agency legal interpretations. In establishing such a structure, courts should first determine whether courts or agencies have a comparative advantage in interpreting the text. They should also then take account of various contextual factors that determine whether the agency's interpretation has power to persuade. This structure is adapted from well-established California law to which federal courts might look for guidance in establishing a Skidmore structure. The article also proposes that courts unify the rules for interpreting the meaning of statutes and regulations by applying Skidmore analysis to both.