Multistep tests pervade the law to the point that they appear to be a fundamental feature of legal reasoning. Famous doctrines such as Chevron or qualified immunity take this form, as do more obscure doctrinal formulas. But surprisingly, these doctrinal formulations as a class are relatively new. The reality is that the intellectual moment that gave rise to Chevron was one in which multiple older doctrines that relied on multifactor balancing were replaced by new tests formulated as multistep inquiries in which each step was a discrete inquiry.
This Article provides the first historical and normative account of this phenomenon—which I refer to as “stepification.” It charts both the rise of the new multistep tests as well as the intellectual climate that gave birth to these formulations, offering a theory of why courts chose to reorganize the law in this way at the time they did. Additionally, it argues that there are transsubstantive normative advantages and disadvantages to this mode of organizing doctrine, and it offers an accounting of the implications of historical stepification. In doing so, this Article aims to shed light on a historical phenomenon and on trends in modern legal disputes (such as recent cases over partisan gerrymandering and the future of Auer) that illustrate the work that stepification continues to do within our legal culture.
Mitchell Chervu Johnston,
Nw. U. L. Rev.