Category Archives: Reflections on Seminole Rock and the Future of Judicial Deference to Agency Regulatory Interpretations

Auer Symposium: Deference by Bootstrap

by Andy Grewal — Wednesday, Sept. 14, 2016

  If the Supreme Court abandons the deferential approach articulated in Auer v. Robbins, will agencies lose interpretive power over their own regulations?  Not necessarily. Under Auer and various predecessor cases, an agency’s interpretation of its own regulation controls, unless that interpretation is plainly erroneous or inconsistent with the regulation.  Courts do not always precisely […]

Seminole Rock Step One, by Kevin M. Stack

by Guest Blogger — Wednesday, Sept. 14, 2016

Seminole Rock has a step one inquiry too—and, like Chevron’s step one, it depends on the court’s choice of interpretive method. Chevron’s step one asks whether the authorizing statute “directly” speaks “to the precise question at issue” in the sense of clearly prohibiting or requiring the agency’s position. The method of statutory interpretation that the […]

Auer Deference Inside the Regulatory State: Some Preliminary Findings

by Chris Walker — Wednesday, Sept. 14, 2016@chris_j_walker

Yesterday we had three terrific posts on whether Auer deference actually makes a difference in the federal courts of appeals. In other words, do agencies win more when courts apply Auer deference (also known as Seminole Rock deference) to give an agency’s regulatory interpretation “controlling weight unless it is plainly erroneous or inconsistent with the […]

Empirical Answers to Outstanding Questions in the Ongoing Debate Over Auer, by William Yeatman

by Guest Blogger — Tuesday, Sept. 13, 2016

Many unresolved questions weigh heavily on the debate over Auer deference, including: Is Auer deference “stronger” than Chevron deference? How varied are the procedural formats associated with regulatory interpretations that are reviewed under Auer? What would be the administrative burden of reforming Auer by adding a “Step Zero”? In order to provide empirical answers to […]

An Empirical Analysis of Auer Deference in the Courts of Appeals, by Cynthia Barmore

by Guest Blogger — Tuesday, Sept. 13, 2016

Most commentary about Auer deference has been theoretical and dramatic. Justice Scalia, for example, both the author of Auer v. Robbins and one of its early critics, decried Auer as an “evil” that allows “tyrannical laws” to be executed in a “tyrannical manner.” In Auer in Action: Deference After Talk America, I argue that this […]

Why Empirical Examination of Seminole Rock Is important, by Richard J. Pierce, Jr.

by Guest Blogger — Tuesday, Sept. 13, 2016

Empirical study of the effects of the Seminole Rock/Auer doctrine contributed to the decision of the Solicitor General (SG) to file the petition for writ of certiorari that led to the Supreme Court’s 2015 decision in Perez v. Mortgage Bankers Association and may contribute to a decision by the Supreme Court to retain some version […]

Henry Hart’s Brief, Frank Murphy’s Draft, and the Seminole Rock Opinion by Aditya Bamzai

by Guest Blogger — Monday, Sept. 12, 2016

In the summer of 1942, Professor Henry Hart, then ten years into his career as a law professor, temporarily left the Harvard Law faculty to become an associate general counsel at the Office of Price Administration, an agency responsible for setting prices throughout the World War II-economy. Just under three years later, Hart argued the […]

Reflections on Seminole Rock: The Past, Present, and Future of Deference to Agency Regulatory Interpretations

by Aaron Nielson — Monday, Sept. 12, 2016@Aaron_L_Nielson

Seminole Rock (or Auer) deference prompts many disagreements. Everyone agrees, however, that Seminole Rock has captured the attention of scholars, policymakers, and the judiciary. That is why we at Notice & Comment have decided that the time has come to collect thoughts regarding different aspects of Seminole Rock. Indeed, over the next two weeks, we […]