Alabama Law Scholarly Commons Articles Faculty Scholarship 2007 Three Facts of Deference Paul Horwitz University of Alabama - School of Law,
[email protected] Follow this and additional works at: https://scholarship.law.ua.edu/fac_articles Recommended Citation Paul Horwitz, Three Facts of Deference, 83 Notre Dame L. Rev. 1061 (2007). Available at: https://scholarship.law.ua.edu/fac_articles/178 This Article is brought to you for free and open access by the Faculty Scholarship at Alabama Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Alabama Law Scholarly Commons. THREE FACES OF DEFERENCE Paul Horwitz* Deference-the substitution by a decisionmaker of someone else's judg- ment 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 atten- tion in constitutional scholarship. This Article aims to fill that gap. This Article makes three primary contributions to the literature. First, it provides a careful examination of deference as a doctrinal tool in constitu- tional law, and offers a taxonomy of deference. In particular,it suggests that deference can best be understood as relying on two separatebut overlap- ping grounds: deference on the basis of the legal authority of the deferee, and deference on the basis of the deferee's epistemic, or knowledge-based, authority. Importantly, this Article suggests that deference cannot be examinedfrom the standpoint of the deferring institution-usually,the courts-alone. Rather, we must also take into account the obligations of deferees, which should demand deference only for those decisions reached in the full andfair exercise of their legal or epistemic authority.