Prof. Hickman Cited In U.S. Supreme Court Opinion

Prof. Kristin Hickman’s essay, The Chevronization of Auer, 103 Minn. L. Rev. Headnotes 103 (2019), co-authored with Mark Thomson ’12, was cited by Justice Gorsuch in his concurring opinion in Kisor v. Wilkie, No. 18-15 (June 26, 2019). The Kisor case concerned whether the Supreme Court should overturn the Auer doctrine, which calls upon courts to defer to federal government agency interpretations of their own regulations. Commenting on the case in their essay, Hickman and Thomson noted that common practical justifications for the Auer doctrine assumed that it simplified the judicial task and fostered consistency and predictability in the administrative process. But, they observed, various qualifications and exceptions that the Court has more recently added to the Auer doctrine have made its application substantially more complex and have undermined those practical rationales. Despite concurring in the Court’s decision to retain the Auer doctrine, Justice Gorsuch was sharply critical of the Court’s Auer jurisprudence, and cited Hickman and Thomson as supporting his contention that “Auer has also become ‘a doctrine of uncertain scope and application’ ... [that] has resulted in ‘widespread confusion’ about when and how to apply Auer deference.”