Tag Archives: Auer Deference

Empirical Insight into the Use of Seminole Rock Doctrine (Part II), by William Yeatman

by Guest Blogger — Friday, Sept. 28, 2018

In my last post, I presented the results of an empirical investigation into Seminole Rock deference as a judicial methodology. Below, I lend perspective to these results. Deference to Agency Interpretations of Non-Regulatory Texts Is an Understudied Area of Administrative Law Perhaps the most noteworthy finding of this analysis is that the Seminole Rock framework […]

New Supreme Court Cert Petition to Overrule Auer Deference: Kisor v. O’Rourke

by Christopher J. Walker — Monday, July 9, 2018@chris_j_walker

Here at Notice and Comment two years ago, we did an online symposium on the future of Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” In recent years, as I detail […]

The Limits of Auer Deference, Cass-DeMuth-Walker Amicus Brief in Gloucester County v. G.G.

by Christopher J. Walker — Wednesday, Jan. 11, 2017@chris_j_walker

Yesterday Ron Cass, Chris DeMuth, and I filed an amicus brief in Gloucester County School Board v. G.G. — the Supreme Court case that considers the U.S. Department of Education’s interpretation of Title IX with respect transgender students and access to bathrooms in public schools. We do not weigh in on the merits of the statutory […]

(Upcoming Symposium) Reflections on Seminole Rock: The Past, Present, and Future of Deference to Regulatory Interpretations

by Aaron Nielson — Thursday, Sept. 1, 2016@Aaron_L_Nielson

Everyone who has been following administrative law in recent years knows that Seminole Rock deference is controversial. Because of Seminole Rock deference (also known as Auer deference), courts—generally—defer to an agency’s interpretation of its own ambiguous regulations. (Put another way, “Auer deference is Chevron deference applied to regulations rather than statutes.”) This sort of deference […]

A Sleeper Auer Case

by Andrew Hessick — Tuesday, Aug. 23, 2016@andyhessick

Auer deference — the deference an agency receives when interpreting its own regulations — is one of the most powerful tools for the government in administrative law. But the doctrine has faced increasing criticism. Opponents have argued that the doctrine enables agencies to circumvent procedural safeguards by promulgating vague rules through notice and comment and […]

Murphy on Barmore on Auer Deference in the Circuit Trenches (AdLaw Bridge Series)

by Christopher J. Walker — Thursday, Apr. 7, 2016@chris_j_walker

Last week over at Jotwell, Richard  Murphy reviewed Auer in Action: Deference After Talk America byCynthia Barmore, which was published last year in the Ohio State Law Journal. Here’s a summary of the paper from the SSRN abstract (the paper is available on SSRN here): For decades, judges and commentators took for granted that courts should […]

Vehicle for Supreme Court to Reconsider Auer Deference Reaches Court

by Christopher J. Walker — Wednesday, Jan. 13, 2016@chris_j_walker

As I noted back in October, the Seventh Circuit decided a case  Bible v. United States Aid Funds, Inc. , which Judge Easterbrook claimed was a suitable vehicle for the Supreme Court to reconsider Auer/Seminole Rock deference — the  doctrine that instructs courts to defer to an agency’s interpretation of its own regulation unless the interpretation […]

Judge Easterbrook Identifies Vehicle for Supreme Court to Reconsider Auer Deference

by Christopher J. Walker — Monday, Oct. 5, 2015@chris_j_walker

Today, in his concurrence in the denial of rehearing en banc in Bible v. United States Aid Funds, Inc.(7th Circuit), Judge Easterbrook serves up an excellent vehicle (at least in his opinion) for the Supreme Court to reconsider Auer deference in administrative law. (HT Will Baude)  As I’ve blogged about here, a number of Justices […]

Is It Time to Revisit Auer Deference? Some Preliminary Empirical Findings

by Christopher J. Walker — Tuesday, Dec. 2, 2014@chris_j_walker

Yesterday the Supreme Court heard argument in Perez v. Mortgage Bankers Association, which presents an important administrative law question of whether notice-and-comment rulemaking is required when an agency significantly alters an interpretive rule that sets forth the agency’s interpretation of its own regulation. Jeff has done two very thoughtful posts about the case here and here, and […]