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9 Regul. Rev. Depth 1 (2020)

handle is hein.journals/rgyrvidh9 and id is 1 raw text is: THE SUPREME COURT'S DOUBLETHINK ON ARBITRATION AND ADMINISTRATION Paul R. Verkuilt 1984 was a dramatic year for literature and law. George Orwell's classic novel came of age, with its four Ministries of Peace, Love, Plenty, and Truth that brilliantly described their opposites.1 Less observed that year-except by administrative lawyers-was the U.S. Supreme Court's decision in Chevron v. Natural Resources Defense Council, the case that was to recalibrate judicial review of agency decisions.2 Also decided that same year was Southland Corp. v. Keating, a case preempting state arbitration laws that even administrative lawyers may have ignored.3 It is tempting to tie all three events together-since Orwell's ministries are, after all, agencies. But I will focus on the two decisions by the Supreme Court. Taken together, they tell an unappreciated tale of doctrinal contradiction-a kind of Orwellian doublethink. The question for today is how did arbitration, an alternative decision regime about which the Court knows little, become so favored that a majority of justices have been willing to embrace it almost without question, while administration, an established regime about which the Court knows a lot, has been questioned to the point of being disfavored?4 Chevron is the well-known tale, as the most cited administrative law case and the subject of endless discussion that has felled many trees.5 I intend to leave most of that aside and focus on Chevron's overarching purpose: T President emeritus of the College of William and Mary. From 2010-2015 he served as the Chairman of the Administrative Conference of the United States. The author wishes to thank Kevin Bell, Cary Coglianese, Jeff Lubbers, Dick Pierce, Imre Szalai, Matt Wiener, and the editors of The Regulatory Review. 1 GEORGE ORWELL, 1984 (1949). 2 467 U.S. 837 (1984). 3 465 U.S. 1 (1984). 4 See Jonathan H. Adler, Shunting Aside Chevron Deference, REGUL. REV. (Aug. 7, 2018), https://www.theregreview.org/2018/08/07/adler-shunting-aside-chevron-deference/. 5 See, e.g., Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511 (1989); Adrian Vermeule, Chevron as a Legal Framework, ADMIN. L. JOTWELL (OCT. 24, 2017), https://adlaw.jotwell.com/chevron-as-a-legal- framework.

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