Hear Auer deference, and you’re unlikely to think of criminal law.  After all, Auer deference is a doctrine of administrative law, and administrative law has traditionally been viewed as separate from criminal law.  And it’s true, Auer deference does not often come up in determining whether a substantive criminal violation has occurred. But Auer deference […]

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 explain […]

Seminole Rock has a step one inquiry too—and, like Chevron’s step one, it depends on the court’s choice of interpretive method. Chevron’s step one asks whether the authorizing statute “directly” speaks “to the precise question at issue” in the sense of clearly prohibiting or requiring the agency’s position. The method of statutory interpretation that the […]

Empirical study of the effects of the Seminole Rock/Auer doctrine contributed to the decision of the Solicitor General (SG) to file the petition for writ of certiorari that led to the Supreme Court’s 2015 decision in Perez v. Mortgage Bankers Association and may contribute to a decision by the Supreme Court to retain some version […]

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 […]

Earlier this month we hosted a terrific online symposium reviewing my co-blogger Peter Conti-Brown’s important new book The Power and Independence of the Federal Reserve, which was recently published by the Princeton University Press. The contributions to the symposium were diverse and thought-provoking. For ease of reference, I thought I’d include links to all of […]

What a pleasure it has been to read these reviews. As I set out to write The Power and Independence of the Federal Reserve , this very audience—serious scholars and practitioners of administrative law who had thought hard about institutional design in other contexts besides the Fed—weighed heavily as one of the primary groups of […]

Readers are hard to please. It is bad enough that we criticize books that we could not even begin to write. But even worse, when an author has penned something that we like, all too often our response is not “thank you” but rather “more please”—and sometimes we don’t say “please.” I confess that after […]

When an independent agency is created, from whom does it gain independence – the President, Congress, or the people? Maybe the better question is whether it is really independent at all. One thing in particular that caught my eye is Peter Conti-Brown’s focus in Part III on the independence of the Federal Reserve Board (Fed) […]

I join my fellow colleagues in praising Peter Conti-Brown’s The Power and Independence of the Federal Reserve. The book provides an insightful history of the Federal Reserve since its 1913 inception and is a powerful account of the extent to which “personnel is policy.” In particular, I note his nuanced understanding of “agency independence” as […]