In 1945, in Bowles v. Seminole Rock, the Supreme Court declared that courts should defer to agency interpretations of their own regulations. The court reaffirmed this holding in Auer v. Robbins, a 1997 opinion authored by the late Justice Antonin Scalia. Before his death, however, Scalia had second thoughts, concluding that judicial deference to agency interpretations of their own regulations was unwarranted, and he was not alone.
The Supreme Court has passed up several opportunities to reconsider Auer and Seminole Rock, but more are on the way. Will the court reconsider Seminole Rock and Auer? Should it? Why did the court initially decide that deference to agency interpretations was a good idea? And was it correct to do so?
These questions (and more) are the subject of an online symposium on Auer and Seminole Rock beginning this week at Notice & Comment, the blog of the Yale Journal on Regulation.
Aaron Nielson has written an introduction for the symposium. Here are the first two contributions by Sanne H. Knudsen & Amy J. Wildermuth and Aditya Bamzai. Additional contributions are forthcoming from (among others) Richard Pierce, Kevin Stack, Catherine Sharkey, Ron Levin, Gillian Metzger, Kristin Hickman, and Cass Sunstein & Adrian Vermeule, among others. I’ll have a contribution to the symposium later this week, too.
The full symposium will be indexed here.