Thursday, January 29, 2015

Knudson and Wilder on a Mid-Century Ad Law Landmark

Sanne H. Knudsen, University of Washington School of Law, and Amy J. Wildermuth, University of Utah S.J. Quinney College of Law, have posted Unearthing Seminole Rock.  Here is the abstract:    
In 1945, the Supreme Court blessed a lesser known type of agency deference in Bowles v. Seminole Rock. Also known as Auer deference, it affords deference to agency interpretations of their own regulations. Courts regularly defer to agencies under this doctrine, regardless of where the interpretations first appear or how long-standing they are.

Though Seminole Rock has come under scrutiny in recent years from scholars and the Supreme Court, the modern debate on whether and how to reform Seminole Rock deference still remains untethered from its roots and evolution. This Article is the first to consider the historical foundations of Seminole Rock and closely examine how this doctrine has risen to its current stature. In particular, this Article starts by describing Seminole Rock’s modest origins, which began in relatively limited price control contexts in the 1940s and 1950s during the first period of expansion of the modern administrative state. It goes on to examine the changing tides of the 1960s and describes how Seminole Rock deference shed its origins and emerged as a more widely-applied doctrine of judicial restraint by the 1970s, a time in which we experienced yet another expansion of the administrative state and a major transformation in administrative law theory.

Most notable, the gradual but broad expansion of the Seminole Rock doctrine has occurred largely without explanation from the courts and with very little commentary from academics. This Article details how, from its highly specific origins in 1945 to its evolution as an “axiom of judicial review” by the 1970s, Seminole Rock escaped critical examination by courts and scholars. By uncovering the historical roots of the Seminole Rock doctrine, this Article provides new depth to the emerging critiques of Seminole Rock deference and lends critical support for reexamination of the doctrine.

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