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107 Colum. L. Rev. Sidebar 20 (2007)
Bringing Order to the Skidmore Revival: A Response to Hickman & Krueger

handle is hein.journals/sidbarc107 and id is 9 raw text is: COLUMBIA LAW REVIEW SIDEBAR VOL. 107 DECEMBER 16, 2007 PAGES 20-26 BRINGING ORDER TO THE SKIDMORE REVIVAL: A RESPONSE TO HICKMAN & KRUEGER Amy Wildermuth* The first line of Kristin Hickman and Matthew Krueger's article announcing that Skidmore deference is back' brings to my mind those awful horror villains of the 1980s-like Jason from the Friday the 13th movies or Chucky from the Child's Play series-who repeatedly returned to terrorize. The fact that the revival of Skidmor2 triggers the memory of these bloodthirsty and unstoppable-against-all-odds villains will be no surprise to most administrative law practitioners and scholars (not to mention law students). Like Jason and Chucky, Skidmore is not just scary; it is a very messy business. In their article, In Search of the Modern Skidmore Standard, Hickman and Krueger examine the 'modern' Skidmore era, and, based on their evaluation of the cases since Mead,' propose solutions to bring order to the current disarray. Although I have quibbles with some of their characterizations-both with respect to their description of my work and the courts' approaches to these cases4-their piece does much to advance the Skidmore discussion. * Associate Professor of Law, University of Utah S.J. Quinney College of Law. 1. Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1236 (2007). 2. Skidmore v. Swift & Co., 323 U.S. 134 (1944). 3. United States v. Mead Corp., 533 U.S. 218 (2001). 4. For example, Hickman and Krueger suggest that my study included only the 23 cases found in footnotes 176 and 177 of my piece, Amy Wildermuth, Solving the Puzzle of Mead and (huistensen: What Would Justice Stevens Do?, 74 Fordham L. Rev. 1877, 1899 (2006). That is not accurate. I did examine federal court of appeals cases since Womack's analysis but the small subset of those cases found in footnotes 176 and 177 were only those in which courts did not shortcut the Skidmore analysis, i.e., engaged in something more than a cursory analysis of both when Skidmore applied as well as how it was applied. I did not mean for those cases to represent the whole universe of cases that referred to Skidmore or even the universe that Hickman and Krueger define to come up with their 104 cases. If anything, the cases in footnotes 176 and 177 are closer to-but not quite the same as-the smaller set of cases that Hickman and Krueger concluded fell into the category of sliding-scale cases. This disagreement illustrates the difficulty of characterizing the courts' approaches to Skidmore, further underscoring the confusion and messiness in this area. See Hickman & Krueger, supra note 1, at 1278-79. 20

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