Brief of Professors of Administrative Law and Federal Regulation as Amici Curiae in Support of Neither Party, Kisor v. Wilkie, No. 18-15 (U.S.)

23 Pages Posted: 4 Mar 2019 Last revised: 12 Nov 2019

See all articles by David L. Noll

David L. Noll

Rutgers Law School

Samuel Estreicher

New York University Law School

Date Written: January 31, 2019

Abstract

In Kisor v. Wilkie, the United States Supreme Court considers whether to overrule Auer v. Robbins and its antecedent, Bowles v. Seminole Rock & Sand Co. This brief in support of neither party elucidates the differences between the deference principles of Auer and Seminole Rock, on the one hand, and Chevron USA Inc. v. Natural Resources Defense Council, Inc., on the other. Without taking a position on the continuing viability of Auer and Seminole Rock, the brief urges the Supreme Court to respect the differences between "Chevron deference" and "Auer deference." It demonstrates that the two doctrines are fundamentally distinct, and that Chevron deference remains appropriate even if Auer deference to an agency’s interpretation of its own regulations is reconsidered.

Note: The brief was submitted on behalf of Professors William D. Araiza (Brooklyn Law School), Michael Asimow (Stanford Law School and UCLA School of Law), Marshall Breger (Columbus School of Law), William W. Buzbee (Georgetown University Law Center), Bryan T. Camp (Texas Tech University School of Law), Samuel Estreicher (New York University School of Law), William Funk (Lewis & Clark Law School), Jerry L. Mashaw (Yale University), Nina A. Mendelson (University of Michigan Law School), Joel A. Mintz (Nova Southeastern University College of Law), David L. Noll (Rutgers Law School), Richard Stewart (New York University School of Law), Peter L. Strauss (Columbia Law School), and Jeff Thaler (Maine Law School).

Keywords: Auer v. Robbins, Bowles v. Seminole Rock & Sand Co., Chevron USA Inc. v. Natural Resources Defense Council, Inc., deference

JEL Classification: K20, K23

Suggested Citation

Noll, David and Estreicher, Samuel, Brief of Professors of Administrative Law and Federal Regulation as Amici Curiae in Support of Neither Party, Kisor v. Wilkie, No. 18-15 (U.S.) (January 31, 2019). NYU Law and Economics Research Paper No. 19-08, Rutgers Law School Research Paper , Available at SSRN: https://ssrn.com/abstract=3333337 or http://dx.doi.org/10.2139/ssrn.3333337

David Noll (Contact Author)

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HOME PAGE: http://law.rutgers.edu/bio/dln65

Samuel Estreicher

New York University Law School ( email )

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(212) 995-4341 (Fax)

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