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Wednesday, June 26, 2019

Balls, strikes, and ground-rule doubles

In his opinion concurring in the judgment in Kisor v. Wilkie and arguing for overruling Auer deference, Justice Kavanaugh gave us this:

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

I know analogies are only analogies and never exact. But they should be close enough to be helpful and this one is not. The problem is that the role of the Cubs and the role of an administrative agency, such as the VA, are not the same in one critical respect--an agency is charged with enforcing the regulations that it enacts, the Cubs are not.

An agency is charged with enforcing a statute, including making regulations to assist with that enforcement. Auer deference thus makes sense for the same reason that Chevron deference makes sense--give the enforcing agency some room to carry out its enforcement obligations, so long as its interpretations are reasonable. The Cubs' responsibility is to enact ground rules unique to their park--e.g., a ball that sticks in the outfield-wall ivy is a dead ball, the batter awarded second base, and runners awarded two bases--but not to enforce those ground rules, a power that rests with the umpires in the first instance.

It seems to me that this makes a difference, rendering the analogy pointless. There may be good reasons not to defer to an agency's interpretation of the regs it is charged with enforcing. One of those reasons is not that we do not defer to a different "agency's" interpretation of the regs it enacts but is not charged with enforcing.

Posted by Howard Wasserman on June 26, 2019 at 06:06 PM in Howard Wasserman, Judicial Process, Sports | Permalink


But that is exactly my example. In cricket, the batsman is expected to decide for himself whether he is out (and "walk" if so) and if he doesn't walk the fielding team may appeal to the umpire. So it's precisely analogous.

If that were the rule/custom in baseball, would we defer to the Cubs manager? Is there any way the rules of baseball could be framed or enforced in which we would?

Posted by: Salem Al-Damluji | Jun 28, 2019 2:16:08 AM

The difference is not the appeal. It's that the agency is given the authority to make a decision under the regulation first, with the court then empowered to review that decision. If the Cubs could decide something was a ground-rule double and then the question was presented to the umpire, then we would have an analogous situation.

Posted by: Howard Wasserman | Jun 27, 2019 7:02:18 PM

Sure, there's a difference. But why is it relevant?

If in baseball (as in cricket) umpires only gave outs when the fielding team appealed for them, would it be appropriate to defer to the Cubs manager?

Posted by: Salem Al-Damluji | Jun 27, 2019 4:04:25 PM

SCJ: But the agency has an intermediate role to play that the Cubs don't. The agency is charged with enforcing those regs in its proceeding first, with the courts coming in only to review the agency decision. The Cubs have no interpretive power in the first instance--they set the rule, then play the game on the same footing as the other team and the umpire applies the rule in the first instance.

Biff and Asher: The agency's authority is not the only reason for Auer deference. I am not making a substantive argument for or against Auer--that is beyond my knowledge (Ad Law was 25 years ago for me at this point). I am explaining why the analogy doesn't hold, in that the Cubs' function is different than the agency's function.

Posted by: Howard Wasserman | Jun 27, 2019 8:32:36 AM

The Cubs and the United States are engaged in zero-sum competition (ballgame / lawsuit) against an opponent (Cardinals / private litigant) where the home team has previously written rules (ground rules / regulations) to be interpreted by a neutral third-party (umpires / judges) during the course of the competitive endeavor.

That struck me as the heart of the analogy and as apt, but I'm not a law professor.

Posted by: scj | Jun 27, 2019 8:21:50 AM

I tend to be fond of deference doctrines. That said, when someone offers what you think is a disanalogous analogy, it's worth considering why the person offering it might think that the things you think make it disanalogous are immaterial. I think one thing Kavanaugh might say to you is that the plurality doesn't seem to think Auer makes sense for exactly the reasons you do, and does think it makes sense for reasons that would justify deference to the Cubs manager. They initially say that Auer's a good idea because if you want to know what a rule means you should ask its author, an argument that *would* justify deference to the writers of ballpark-specific ground rules, or amicus briefs by congressmen about what the statutes they wrote meant, or the particular Justice who wrote a Supreme Court opinion in subsequent disputes over what his opinion held. I think it's fair to point out, by analogy, that this argument for deference would take us to strange places in other contexts.

Now, it may be that the plurality doesn't see that as a sufficient condition for deference and that what seals the deal for the plurality is enforcement. (Which in turn, we could illustrate by analogy, seems like an at least independently insufficient ground for deference. It might seem quite intuitive to you that the SEC gets deference to its interpretations of its rules because it enforces them, or even that it should get deference to its interpretations of securities laws because it enforces them, but the DOJ enforces federal criminal law and no one thinks they should get deference to what they say about it.) But I'm not sure that's the case; the Court goes on to talk about comparative expertise, which I suppose the Cubs staff have over visiting umpires, or "getting in the weeds of a rule's policy," an argument that both relies on the supposed superior interpretive authority of a rule's author, and the inferior policy-assessing competence of a judge. This too might be said of the Cubs staff and umpires; what position is a visiting umpire in to make some sort of policy judgment about whether an ivy-like obstruction should be treated like the ivy on the wall at Wrigley (to the extent that's a possible hypothetical scenario)? To be sure, all these reasons are said to support a kind of implied or legal-fictional delegation to agencies to interpret their rules as they enforce them, but the reasons this delegation are implied aren't "the agency enforces the rules so it makes sense for it to interpret those rules," but rather a bunch of stuff that could be said, roughly speaking, of the author of Wrigley's ground rules with respect to Wrigley ground rules.

Posted by: Asher | Jun 26, 2019 8:03:17 PM

"Giving the agency room to carry out its enforcement obligations" is an interesting argument for Auer. But as far as I can tell, that isn't the argument the Court has adopted. for example, the majority says that Auer doesn't apply unless the interpretation involves the agency's "substantive expertise." Why should we only give the agency room for enforcement in cases where the interpretation implicate its expertise?

You can't fault Kavanaugh for not tailoring his analogy to meet your argument if no one made that argument.

One thing I don't understand about your argument is why should it be limited to agencies. Why not afford the DOJ, for example, deference in how it interprets elements of crimes, so that it could have room to enforce the laws?

Posted by: Biff | Jun 26, 2019 7:59:22 PM

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