Tag Archives: Auer

Will the Supreme Court Revisit Deference Doctrines This Term?

by Jennifer Mascott — Friday, Oct. 6, 2017@jennmascott

Yesterday in his Supreme Court Relist Watch, John Elwood highlighted the Supreme Court’s unusual action this past summer on a cert petition regarding Chevron deference. Mr. Elwood observed that the Supreme Court relisted—again— Scenic America, Inc. v. Department of Transportation, 16-739, which garnered attention this summer when the court called for a reply . . […]

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 […]

Beyond Seminole Rock — Or Why What We Think We Know About Administrative Deference May Be Wrong

by Aaron Nielson — Thursday, Aug. 11, 2016@Aaron_L_Nielson

Law students go to law school for all sorts of reasons. Some dream of practicing criminal law because they watch a lot of television. Others want to be politicians and see law school as a launching pad. Many want to work for nonprofits because they care deeply about particular issues. Others want to follow in […]

“Goofy” Tax Regulations and Auer Deference

by Andy Grewal — Thursday, Apr. 21, 2016

Earlier this week, the Seventh Circuit issued its opinion in Roberts v. Commissioner , holding that a taxpayer’s efforts regarding his race horses amounted to a business under the tax code, and not a mere hobby, such that the taxpayer could enjoy various deductions. The court reversed the Tax Court’s contrary determination, finding that the […]

Scalia and Chevron: Not Drawing Lines, But Resolving Tensions

by Adam White — Tuesday, Feb. 23, 2016

Among the many reasons for mourning Justice Scalia’s untimely passing (on which I’ve written at length elsewhere) is the fact that his death abruptly cut short his late-career reconsiderations of the administrative state. As Aaron Nielson observes, recent years had seen Justice Scalia expressing serious doubts about judicial deference to agency interpretations of their own […]

The Next Level of Agency Deference?

by Andy Grewal — Thursday, May 14, 2015

Before it collapsed, Lehman Brothers engaged in various tax-motivated transactions, including ones to earn foreign tax credits. Last week, a federal judge addressed the merits of one of those controversies, holding against the defunct bank. The court tucked in a footnote a potentially interesting twist on agency deference. It noted that a so-called IRS Advisory […]

Auer’s Future in Light of Its Record, by Cynthia Barmore

by Guest Blogger — Saturday, Mar. 28, 2015

[CJW Note: I mentioned this terrific study on Auer deference, which is forthcoming in the Ohio State Law Journal, during my teleforum on Mortgage Bankers and then again on the blog here. The author, Cynthia Barmore, kindly agreed to do a guest post on the study, which I’ve included below as part of the Administrative […]

Perez v. Mortgage Bankers Association: The Future of Auer Deference

by Chris Walker — Monday, Mar. 23, 2015@chris_j_walker

Last week my co-blogger Jeff Pojanowski and I participated in a Federalist Society teleforum (moderated by Adam White) on the Supreme Court’s recent decision in Perez v. Mortgage Bankers Association. In Mortgage Bankers, the Court held in a unanimous decision that a federal agency is not required to use notice-and-comment rulemaking to revise a prior interpretation […]

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

by Chris 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 […]