The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Reading Monday's decision in the administrative law case Perez v. Mortgage Bankers Ass'n this morning, I came across this text in Justice Scalia's concurrence in the judgment:
The problem is bad enough, and perhaps insoluble if Chevron is not to be uprooted, with respect to interpretive rules setting forth agency interpretation of statutes. But an agency's interpretation of its own regulations is another matter. By giving that category of interpretive rules Auer deference, we do more than allow the agency to make binding regulations without notice and comment. Because the agency (not Congress) drafts the substantive rules that are the object of those interpretations, giving them deference allows the agency to control the extent of its notice-and-comment-free domain. To expand this domain, the agency need only write substantive rules more broadly and vaguely, leaving plenty of gaps to be filled in later, using interpretive rules unchecked by notice and comment. The APA does not remotely contemplate this regime.
Still and all, what are we to do about the problem?
"Still and all"… I've seen this before. Where? In Justice Kagan's dissent from twelve days earlier in Yates v. United States. Justice Kagan writes:
Still and all, I tend to think, for the reasons the plurality gives, that § 1519 is a bad law-too broad and undifferentiated, with too-high maximum penalties, which give prosecutors too much leverage and sentencers too much discretion. And I'd go further: In those ways, § 1519 is unfortunately not an outlier, but an emblem of a deeper pathology in the federal criminal code.
These kids with their new-fangled expressions! This is no doubt Scalia and Kagan's hunting slang. (Ed Whelan has critiqued Justice Kagan's opinion for her "juvenile slang," when she wrote: "But search me if I can find a better place for a broad ban on evidence-tampering." That really is the only occurrence of "Search me" in the U.S. Reports.)
I myself only heard "still and all" for the first time about ten years ago. This new-fangled expression seems to have been first fangled in the early 19th century, if not earlier. The Oxford English Dictionary lists the following occurrences:
1829, G. Griffin, Collegians, I. vii. 140: Lord K..gave him a lease o' that farm… Still an' all, Myles do be poor, for he never knew how to keep a hoult o' the money.
1928, F. N. Hart, Bellamy Trial, iv. 104: Still and all, I believe that he was there precisely when he said he was.
1942, G. Marx, Let., 16 Dec. (1967), 32: Still and all, as Lardner would say, it's a very cozy little place.
1963, A. Lubbock, Austral. Roundabout, 77: 'Still-and-all,' they said, 'it's no use worrying over things y' can't help, is it?'
1969, Guardian, 18 Aug. 9/5: Still and all, it is surely time to desist in good grace.
1978, R. Moore, Big Paddle (1979), i. 4: Still and all, if you see something I haven't, let me know.
The expression has only appeared in the U.S. Reports three times. The only other occurrence outside of the last two weeks was in Chapman v. United States (1961), a Fourth Amendment case where Justice Whitaker wrote that a search of premises to find an illegal distillery was unconstitutional and the evidence should have been suppressed:
Indeed, the officers here could have abated the nuisance without judicial help by destroying the still and all of its paraphernalia . . . .
But, as I've been told, three times makes a trend!