The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


A Nice Analogy, from Justice Kavanaugh


Today's decision in Kisor v. Wilkie considers whether courts should "defer[] to [federal adminisrative] agencies' reasonable readings of genuinely ambiguous regulations" that the agency itself had promulgated. (That doctrine is often called "Auer deference," after a case that had prominently applied it.) I leave it to my cobloggers who actually know administrative law to talk about the substance; but I was struck by a line in Justice Kavanaugh's separate opinion, explaining why he disapproved of such deference:

Umpires in games at Wrigley Field do not defer to the Cubs manager's in-game interpretation of Wrigley's ground rules.

A nice rhetorical analogy, I think, whatever position one might take on the substantive debate. (Justice Kagan's majority opinion is also very nicely written, as is characteristic of Justice Kagan's opinions.)