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Other Views of the Cathedral

Many other authors have attempted to define deference, though none of those definitions were grounded in a full description of the practices of US federal courts. Many of those other efforts were overtly normative, aimed at deriving an ideal structure for deference that can be used to criticize actual practices. Nonetheless, some of those efforts offer valuable insights even for a purely descriptive project. We reject efforts to limit the definition of deference only to instances in which the deferring body changes its decision in some way; mere consideration of another’s decision is sufficient to constitute deference. From Paul Horwitz we take the idea that deferees must be attentive to their role in a system of deference, and from Aileen Kavanaugh we take the idea that deference can sometimes be justified on prudential, or strategic, grounds. But consideration of others’ views does not change our basic definition of deference as: “The giving by a legal actor of some measure of consideration or weight to the decision of another actor in exercising the deferring actor’s function.”