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 […]
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 […]
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 […]
Steeped in World War II and with inflation growing, the United States sought to avoid repeating the financial mistakes of the first World War and turned for one of the few times in its history to price controls. On the heels of the passage of the Emergency Price Control Act, the Office of Price Administration […]
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 […]
One of the many far-reaching provisions of the 2011 Food Safety Modernization Act (FSMA) authorizes a voluntary program for the accreditation of third-party certification bodies, also known as auditors, to conduct food safety audits and issue certifications of foreign facilities and the foods for humans and animals they produce. FDA finalized this rule in 2015 […]
Each week I blog about the D.C. Circuit. There is a reason for this. In today’s world, we are flooded with commentary about the Supreme Court—and the law of diminishing returns is real. Thus, although the D.C. Circuit is (probably) less important than the Supreme Court, there is more “bounce to the ounce” in covering […]
I don’t envy the reading load that William Domnarski undertook on his way to writing his biography of Richard Posner. By his account in an interview, he read all of Posner’s judicial opinions, numbering some 3,000. And then he read “most of them for the second time,” and “some for the third time.” He then […]
This blog tends to focus on federal regulation or state regulation, but local regulation is also particularly important in some areas of law – particularly public health law, my area of focus. Recently, there have been coordinated efforts to limit local regulation through the use of state-level preemption. Recent examples from my home state of […]
Contrary to the old canard that “every law professor . . . can recite A Few Good Men from memory,” I don’t think I’ve ever actually seen A Few Good Men in its entirety. Sure, I’ve stumbled across snippets of it (it seems like it has been rebroadcast on TNT, I don’t know, about four […]
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 […]
[Note from Daniel Hemel: Guest poster David Feder, currently an associate at Munger, Tolles & Olson in Los Angeles and formerly a law clerk to Judge Neil Gorsuch on the Tenth Circuit, has written a thoughtful response to my post last week criticizing Judge Gorsuch’s opinion in Gutierrez-Brizuela v. Lynch. This post reflects the views only […]
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 […]
Earlier this year my Ohio State colleague Peter Shane and I read at our regular “book club” Leah Litman‘s Taking Care of Federal Law, which was published in the Virginia Law Review. This is such a engaging and provocative paper, and I was glad to see Peter review it for Jotwell last month. Here’s a summary of the paper […]
Reader, no doubt you have come to appreciate just how much nicer the new Notice & Comment looks compared to the old site. (Indeed, the old Notice & Comment looked a lot like this or even this.) To be sure, the transition has not been seamless; I’ve noticed a hiccup now and then. But on […]