Tag Archives: auer deference

Auer’s Flaws Apparent in Ninth Circuit Decision

In a combined appeal involving the Department of Labor’s (DOL) contested construction of the Fair Labor Standards Act (FLSA), a panel of the Ninth Circuit recently held that DOL’s interpretation of regulations implementing FLSA was not entitled to Auer deference, ruling in favor of the defendants, a number of restaurants who had been sued by employees […]

Why Don’t We Flip the Presumption of Auer? Towards an Administrative “Rule of Lenity”

I have a very immodest proposal: let’s flip the presumption of Auer deference so that the regulated party, rather than the regulatory agency, gets the benefit of any ambiguity in a regulation? We’ll start here, but it should be noted for the record that the same logic extends to Chevron deference also. Think about it. In contracts, this […]

END THE FAILED AUER EXPERIMENT NOW*: THE FLAWS OF DEFERRING TO AGENCY INTERPRETATIONS OF THEIR OWN AMBIGUOUS REGULATIONS**

  Introduction Imagine a hapless individual, forced to participate against her will in a game over which participants must wager significant sums of money. The rules of the game are complex and arcane, and this individual is unfamiliar with them. Her competitor, however, is savvy and experienced, having played this game many times in the […]