June ended up being an extremely eventful month for state deference. In addition to the Mississippi Supreme Court’s long expected decision to abandon Auer like deference, the Colorado Supreme Court also issued a major decision rejecting both Brand X and Chevron like deference. Previously, while the court had not has expressly voiced its skepticism or […]
For the past year, there have been few major changes on the state deference front. That’s not to say that 2020 was completely uneventful. 2020 did see a few notable dissents, concurrences, and separate opinions critiquing deference. See Woodford v. Ins. Dep’t, 243 A.3d 60, 79 (Pa. 2020) (Donohue, J., concurring) (“When a reviewing court finds […]
I recently posted about the states that had rejected deference in the past several years and noted that several more states were likely to reconsider deference in 2020. One state that I did not expect to see make the change was Arkansas whose state Supreme Court had as recently as 2014 had employed a highly […]
In a recent post, I wrote about the states that have abandoned Chevron and Auer like deference in recent years. I want to now turn my attention to a much less praiseworthy set of states, those who simply cannot make up their mind about whether or not to defer to agencies. In my article, The […]
Deference doctrines such as Chevron and Auer continue to receive criticism from members of the judiciary including members of the Supreme Court. In Kisor, the Supreme Court recently considered whether to overturn Auer and stop deferring to administrative interpretations of their own regulations. Supporters of deference to administrative agencies issued dire warnings that without deference […]
For decades, the Supreme Court of Utah reviewed agency action under either express or implicit “delegations of discretion” for abuse of discretion. This approach “proved difficult to apply” and resulted in widely inconsistent decisions that depended on whether a court found that a statute granted an implicit delegation of power. So in 2013 the Utah […]
Judicial Review Committee Presents The State of Deference in the States: The End of Deference? Friday October 30, 2020 12 pm – 1:30 pm Eastern Time Via Zoom Panelists: Daniel Ortner, Attorney at the Pacific Legal Foundation Aaron Saiger, Professor of Law at Fordham University Adi Dynar, Litigation Counsel at the New Civil Liberties Alliance […]
I’m just barely getting my monthly post up before the end of the month, but I expect to get July’s post up earlier. There are some fantastic papers in this month’s list. Here is the June 2020 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law […]
It was a very quiet week in the D.C. Circuit — just two opinions. In Waggel v. George Washington University, Judge Rao (joined by Judges Rogers and Garland), affirmed that a psychiatry resident could not sue her former employer because she did not request an accommodation or “rebut the University’s legitimate justifications for its actions.” […]
Last month, Notice & Comment hosted a two-week symposium on Seminole Rock (or Auer) deference. The complete symposium is now available on SSRN. Here is the link. And here is the Table of Contents: Introduction by Aaron Nielson The Lost History of Seminole Rock by Sanne H. Knudsen & Amy J. Wildermuth Henry Hart’s Brief, […]