chevron deference. in my experience, and this is my personal experience, judges often go back and forth arguing over this exact point. one judge will say the statute is clear. that should be the end of it. case over. the other judge will respond i think the text is ambiguous. meaning that one or another canon of construction should be employed to decide the case. neither judge can convince the other. that's because there is no right answer. it turns out there are at least two separate problems facing these disagreeing judges. first the judges must decide how much clarity is enough to call a statute clear? if the statute is say 60-40 in one direction, is that enough to call it clear? how about 80-20? who knows? second, let's imagine that we an agree on an 80-20 clarity threshold. a judge may call it clear only if it is 80-20 in one direction. even if we say that is the necessary level of clarity, how do we apply that formula to particular statutory text? who knows? determining the level of ambiguity in a

chevron canon. if an agency is given authority and the statute is ambiguous defer to the agency. the last 40 years an important exception to that, i don't apply a chevron and presume a nondelegation agency in so-called major questions. this was in the brown and williamson tobacco case in the late '90s, invoked by justice scalia and uarg and the case a few years ago, this is a critical doctrine, in my view, in the current administrative law world and how it's going to be applied. i've written about it in a few cases out there and i think it's quite important. so what does the doctrine do? it says if the issue is a major issue, a major question, i call it the major rules doctrine, if it's a major rule you don't actually defer to the ambiguity. you presume that congress did not delegate to the agency the authority to adopt, to issue a major regulation on the issue. and justice pryor in the '80s articulated something like this in articles, and like i said, the supreme court adopted it in the late 1990's, actually, there are cases that appear in some form before that, even justice rehn

so now to the third and last one i will discuss is chevron deference. under chevron of the statutory term is deemed in big u.s. coal -- courts uphold the authoritative reedy and even if not the best reading so long as the agency's reading is reasonable. this statutory interpretation is why a encounter the most of the d.c. circuit progress a constitutional avoidance there are other critiques people make of chevron. to begin to have as lydia's -- as many or as little so chevron itself it operates as a shift of power from congress to the executive branch but to put those aside those critiques the fundamental problem is that different judges have wildly different conceptions of a statute is clear or ambiguous but the key move is stop if it is clear that number to is not determinant because it depends on the threshold of clarity verses ambiguity as justice scalia pointed out that determination that chink in the armor that is stopping it from being a clear died from future decisions. i see this problem all the time. all the time in my many agency cases it has

point is -- on the deference point, which you're acknowledging, your argument is not entitled to chevron deference deference, which would be the highest form of deference. >> correct. >> but simply entitled to deference to the extent that the argument is persuasive. and that takes into account under doctrines of administrative law changing con sepgsz that administrative agencies may have overtime as to particular legal questions. >> that's exactly right, your honor. >> does the eeoc have a position about judge floun's concurrence in the highly case? is it something that the eeoc could agree with or agrees with? >> well, certainly judge flounce' approach where he looks at whether somebody is being discriminated against because of sex and he looks at it in terms of they are a man who has a relationship with another man, and so if that is what drives the employer's an i mus, then that's discrimination necessarily because of sex. and that is fully in line with our position. >> may i ask you a question about your view on sexster typing. in price waterhouse justice brennan's plur although opinion sugges

. >> what you are arguing is that your argument is not entitled to chevron deference, which is the highest form of deference, that it is simply entitled to deference to the extent that the argument is persuasive. that takes into account under doctrines of administrative law the changing conceptions that administrative agencies may have overtime as to particular questions. >> that is exactly right. >> does the eeoc have a position about the concurrence in another case? is that something the eeoc could agree with? >> the judge's approach where he looks at whether someone has been discriminated based on sex, and he looks at whether a man was in a relationship with another man, if that is what drives the employer, that is discrimination necessarily because of sex. that is fully in line with our osition. >> may i ask you a question on your view of sex stereotyping? in the plurality opinion, it suggests that not all sex stereotyping would support a title vii claim, and i wonder if you could construe that to mean that sex stereotyping that is evident in any particular case has to speak or support

in which you are acknowledging is your argument is not entitled that chevron deference which would be the highest form of deference. >> correct. >> but is simply entitled to deference to the extent the argument is persuasive. that takes into account under administrative law changing conceptions that administrative agencies may have over time as to particular legal questions. >> that's exactly right. >> does the eeoc have positioned about the concurrence? is it something that eeoc could agree with? >> certainly the judges approach where he looks at whether somebody is indiscriminate against because of sex and he looks at it in terms of they are a man whose relationship with another man and so if that is what drives the employers animus and that's discrimination necessarily because of sex. and that is fully in line with our position. >> may i ask you a question on sexto typing? in price waterhouse, jesses brennan plurality opinion suggests not all sexto typing will support a title vii claim. i'm wondering if you can screw that to mean -- construe that it's evidence any particular case h

working right now, there is a doctrine related to the chevron doctrine that deals with nondelegate issues. if an agency is given authority and the statute defers to the agency. for the last 20 years it's been an important exception to that. it's really, don't apply chevron and presume a nondelegation of the agency involving major questions. this was in the brown and williamson case in the late 90s, it was invoked by justice scalia a few years ago. this is a critical doctrine in my view in the current administrative law world, and how daze going to be applied. i've written about it in a few cases that are out there. and i think it's quite important, so what does the doctrine do? it says, if the issue is a major issue, a major question. i call it the major rules dock continue. then you presume that congress did not delegate to the agency, via authority to adopt, to issue a major regulation on the issue. justice breyer in the 1980s articulated something like this. and then like i said, the supreme court adopted it in the late 1990s, there are cases that appeared in some form before that. i think that's a really important doctrine right now for br

difference should -- how much deference should courts give the regulatory agencies when it is not spelled out in the statute? on the question of those benefits. >> the chevron difference. our difference. legal analysis here? [laughter] i won't, but one thought i had when howard was making that point, which is an important point, is there are also a lot of indirect costs and less quantifiable costs. it is very hard to measure the opportunity cost, which is what we care about. what does this mean about a new business getting started? those are invisible. compliance costs tend to be easier to measure. i think they are equally difficult things on the cost side. in terms of the co-benefits or the things, co-benefits and global benefits are probably examples of what you are asking about. it is the clean air act asking the epa to protect u.s. citizens. should courts question whether the epa should count benefits of protecting or affecting non-us citizens? i am not a lawyer.. >> we have lawyers here. i mean, look, i think it is a tough question. all of the benefits that flow from a particular action should be counted in the cost-benefit analysis. the fact that you