2 Post-Kisor Rulings Show Auer Deference Isn't Extinct

By Brent Owen (November 7, 2019, 3:27 PM EST) -- Earlier this year the U.S. Supreme Court issued its opinion in Kisor v. Wilkie, upholding but dramatically narrowing Auer deference. The Auer doctrine instructs that courts must defer to an agency's construction of its own regulation unless that interpretation is "plainly erroneous or inconsistent with the regulation."

While purporting to affirm Auer deference, the Kisor majority held that a court should only defer to an agency's interpretation if there is a genuine ambiguity, the regulatory guidance comes from the appropriate source, and the rationale for the regulation is not litigation-driven. The Kisor court also instructed that interpretive issues that fall into...

Stay ahead of the curve

In the legal profession, information is the key to success. You have to know what’s happening with clients, competitors, practice areas, and industries. Law360 provides the intelligence you need to remain an expert and beat the competition.

  • Access to case data within articles (numbers, filings, courts, nature of suit, and more.)
  • Access to attached documents such as briefs, petitions, complaints, decisions, motions, etc.
  • Create custom alerts for specific article and case topics and so much more!


Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Ask a question!