Notice & Comment

Author: Daniel Deacon

Notice & Comment

Identifying Alternatives:  Some Old, a Little New, by Daniel Deacon

*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. I’m going to focus on OMB’s proposed revisions to Circular A-4’s section on “alternative regulatory approaches,” which is housed at what would be section 6 of the revised Circular. First, some background.  To do cost-benefit analysis—or any other […]

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Ad Law Reading Room: Margaret Kwoka, “Delegating Information Oversight”

Today’s Ad Law Reading Room features “Delegating Information Oversight” by Professor Margaret Kwoka, which is forthcoming in the Georgetown Law Journal. Here is the abstract: The right to access government information is a foundational element of a democratic society, protected in the United States by the Freedom of Information Act, or FOIA. But agencies cannot […]

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Ad Law Reading Room: Bijal Shah, “Administrative Subordination”

Today’s Ad Law Reading Room entry is “Administrative Subordination” by Professor Bijal Shah, which is forthcoming in the University of Chicago Law Review. Here is the abstract: Much of the work on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable marginalized people as a result of individualized bias or arbitrariness in administration. […]

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Ad Law Reading Room: Emily S. Bremer, “Power Corrupts”

Today, Ad Law Reading Room brings you “Power Corrupts” by Professor Emily Bremer. Here is the abstract: Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be […]

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Ad Law Reading Room: Brian D. Feinstein, “Legitimizing Agencies”

Today’s Ad Law Reading Room entry is “Legitimizing Agencies” by Professor Brian Feinstein, which is forthcoming in the University of Chicago Law Review. Here is the abstract: The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. To enhance agencies’ legitimacy with the public, generations of judges and scholars have variously […]

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Ad Law Reading Room: Andrea Katz & Noah Rosenblum, “Becoming the Administrator-in-Chief: Myers and the Progressive Presidency”

Welcome back to the Ad Law Reading Room, where we highlight recent scholarship in administrative law and related fields. Today’s entry is “Becoming the Administrator-in-Chief: Myers and the Progressive Presidency” by Professors Andrea Katz and Noah Rosenblum, which is forthcoming in the Columbia Law Review. Here is the abstract: In a series of recent cases, […]

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Ad Law Reading Room: Allison M. Whelan, “Executive Capture of Agency Decisionmaking”

Welcome to the Ad Law Reading Room, a new series here at Notice and Comment that will highlight recent scholarship in administrative law and related fields. Today’s article is “Executive Capture of Agency Decisionmaking” by Professor Allison M. Whelan, which was recently published by the Vanderbilt Law Review and posted to SSRN. Here is the […]

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The Strange and Fascinating Save the Internet Act

The House of Representatives on Wednesday passed the Save the Internet Act of 2019.  In broad strokes, the bill would restore the Obama-era FCC’s order that classified Internet service providers as “telecommunications carriers” subject to regulation under Title II of the Communications Act and imposed a set of net neutrality rules on ISPs pursuant to […]

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Judge Kavanaugh and “Weaponized Administrative Law”

In her recent dissent in Janus v. AFSCME, Justice Kagan accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”  Judge Kavanaugh, now nominated to fill Justice Kennedy’s seat on the Supreme Court, might be accused of doing the […]

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FCC Loses “Muni Broadband” Appeal

Back in February 2015, in the same meeting at which the FCC reclassified broadband providers as Title II common carriers, the Commission also approved an order preempting certain state laws restricting municipal broadband providers.  In June, the D.C. Circuit upheld the Commission’s Title II reclassification.  Yesterday, the Sixth Circuit vacated the muni broadband order. A […]

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The FCC’s Upcoming Privacy Rules and the Fragmentation of Internet Regulation

Last week, the Federal Communications Commission announced that it would soon release an NPRM on consumer privacy. According to the Commission’s “fact sheet,” the Notice will propose a number of requirements on broadband Internet Service Providers, including an obligation not to share customer information with non-affiliated services without first obtaining the customer’s express consent. I […]

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That Other Basis for FCC Jurisdiction over the Internet

As Chris Walker noted recently on Twitter, the latest issue of the Administrative Law Review was kind to Notice and Comment bloggers. My own contribution has to do with a new basis for the FCC’s jurisdiction over Internet Protocol-based networks and services. And that basis is not Title II of the Communications Act, which has […]