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Revisiting Seminole Rock, Jeffrey A. Pojanowski
Revisiting Seminole Rock, Jeffrey A. Pojanowski
Journal Articles
The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.
This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at Seminole Rock …
Without Deference, Jeffrey Pojanowski
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 …