Notice & Comment

Funk on Sunstein & Vermeule on Auer’s Hour (AdLaw Bridge Series)

This post will be short, as we will be hosting a terrific online symposium in September on judicial deference to an agency’s interpretation of its own regulations (a.k.a. Auer deference or Seminole Rock deference). We have a terrific line-up, including the three scholars featured in this post.

But I wanted to highlight now in the AdLaw Bridge Series that earlier this summer over at Jotwell Bill Funk reviewed The Unbearable Rightness of Auer by Cass R. Sunstein and Adrian Vermeule, which will be published in the University of Chicago Law Review. Here’s a summary of the paper from the SSRN abstract (the paper is available on SSRN here):

For more than seventy years, courts have deferred to reasonable agency interpretations of ambiguous regulations. The Auer principle, as is it is now called, has attracted academic criticism and some skepticism within the Supreme Court. But the principle is entirely correct.  In the absence of a clear congressional direction, courts should assume that because of their specialized competence, and their greater accountability, agencies are in the best position to decide on the meaning of ambiguous terms. The recent challenges to the Auer principle rest on fragile foundations, including an anachronistic understanding of the nature of interpretation, an overheated argument about the separation of powers, and an empirically unfounded and logically weak argument about agency incentives, which exemplifies what we call “the sign fallacy.”

Entitled Saving Auer, Professor Funk’s Jotwell review of the piece is worth a read (as is the article being reviewed). Here’s a snippet of his extensive review:

Professors Sunstein and Vermeule have provided a valuable service in starting the defense of Auer deference. They have provided convincing rebuttals of the critiques of Auer that have appeared in recent Supreme Court opinions and pointed out the obvious benefits of deference to an agency’s interpretation of its own regulations. Perhaps the only piece missing in the puzzle now is the effect of strong Auer deference on an agency’s choices of whether to clarify regulations by notice-and-comment rulemaking or by interpretive rule.

I’ll save my further commentary on the Auer debate for my contribution to the online symposium in a few weeks. In the meantime, definitely go check out the review and the paper.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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