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Abstract

Seminole Rock deference warrants reconsideration as it is based on questionable constitutional and pragmatic foundations. This Note argues that courts should provide a meaningful check on agency interpretations by engaging in de novo review of agency resolutions of regulatory ambiguities. Part I explores the development of the Seminole Rock doctrine, from its questionable doctrinal foundations and rapid expansion to the developing concerns regarding its continued validity. In addition, Part I explains the variety of forms that agency interpretations can take, including legal briefs, amicus briefs, and internal memoranda, and discusses their impact in expanding the scope of Seminole Rock deference. Part II considers the various justifications for, and concerns with, Seminole Rock deference. In particular, Part II looks at two primary arguments offered in support of Seminole Rock—the agency’s special insight and institutional competence—and assesses their merits in light of Seminole Rock’s primary concerns—separation of powers and agency gamesmanship. Finally, Part III considers the merits of Professor Manning’s argument that Seminole Rock should be replaced with Skidmore deference, and concludes, despite the potential efficiency costs, that the Court should abandon Seminole Rock and engage in de novo review of agency interpretations of their regulations.

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