Law Commons^™

Minimally Democratic Administrative Law, Jud Mathews

Journal Articles

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …

Energy Deference, Sharon B. Jacobs

Publications

Electricity law is complex, and the Supreme Court knows it. Lawyers are familiar with the adage that generalist courts tend to defer to agency decisions where the subject matter is complex or technical. But what features of a case make the Court more or less likely to defer to the agency's judgment? And how exactly do deference regimes work in the presence of complexity? This essay offers insights gleaned from Court's opinion in Federal Energy Regulatory Commission v. Electric Power Supply Ass’n (“EPSA”). It explains, first, that Courts are highly deferential in energy cases due to both the complexity of …

Without Deference, Jeffrey Pojanowski

Journal Articles

This essay explores what judicial review of agency interpretations of law would look like if the Supreme Court abandoned Chevron deference in favor de novo review. It concludes that such an alternative regime has appealing features, but may not bring as much immediate, practical change as many critiques or defenses of Chevron presume. The largest change would come from how we think about law and policy in the administrative state. The theoretical scaffolding that would uphold a regime of non-deferential review is far more classical in cast than the moderate legal realism underwriting Chevron. The more traditional character of this …

Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Gillian E. Metzger, Aaron Nielson, Sanne H. Knudsen, Amy J. Wildermuth, Aditya Bamzai, Richard J. Pierce, Cynthia Barmore, William Yeatman, Christopher J. Walker, Kevin M. Stack, Andy Grewal, Steve R. Johnson, F. Andrew Hessick, Jonathan H. Adler, Catherine M. Sharkey, David Feder, Cass R. Sunstein, Adrian Vermeule, Ronald M. Levin, Kevin O. Leske, James Cleith Phillips, Daniel Ortner, William Funk, Kristen E. Hickman, Jeffrey A. Pojanowski, Adam White, Conor Clarke

Faculty Scholarship

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.

Topics include:

• History of Seminole Rock
• Empirical Examinations of Seminole Rock
• Understanding Seminole Rock Within Agencies
• Understanding Seminole Rock as Applied to Tax, Environmental Law, and Criminal Sentencing
• Why Seminole Rock Matters …

Reflections On Seminole Rock: The Past, Present, And Future Of Deference To Agency Regulatory Interpretations, Amy J. Wildermuth, Sanne H. Knudsen

Articles

Seminole Rock (or Auer) deference has captured the attention of scholars, policymakers, and the judiciary. That is why Notice & Comment, the blog of the Yale Journal on Regulation and the American Bar Association’s Section of Administrative Law & Regulatory Practice, hosted an online symposium from September 12 to September 23, 2016 on the subject. This symposium contains over 20 contributions addressing different aspects of Seminole Rock deference.