If one has enough resolve, one should always be able to find “ascertainable standards” embedded in a regulatory statue. Ascertainable standards are both (1) policy objectives that the regulatory agency must use in its decision-making, including rulemaking, and (2) what a reviewing court will use when determining if the agency has acted in an “arbitrary and […]
In a recent article, FCC Commissioners Brendan Carr and Nathan Simington interpreted constitutional protections of Texas Law HB20. They describe social media platforms as “dominant” with “market power,” similar to the appellate courts and parties in the NetChoice cases.[1] As economists, my colleagues and I filed an amicus brief in support of neither party in these cases to clarify these economic […]
With the Supreme Court hearing arguments in Garland v. Cargill this term, the Court has been asked to decide the narrow question of whether a bump stock device is a “machinegun” as defined in the National Firearms Act.[1] However, embedded within the case is an issue that raises broad administrative law questions about how the rule of lenity […]
The ABA Section of Administrative Law and Regulatory Practice is seeking nominations for leadership positions on our governing council. Please help us continue our legacy by nominating brilliant thoughtful lawyers with diverse views, perspectives, backgrounds, and roles in the field of administrative law. A nomination can be as simple as a few sentences. That said, […]
Next month, the Supreme Court will hear arguments in constitutional challenges to a pair of laws from Florida and Texas that would force social media sites to disseminate a wide range of third-party speech that they do not wish to carry. FCC Commissioners Brendan Carr and Nathan Simington have written a defense of Texas’s law, HB20, which would require certain […]
The parties’ briefing in Loper Bright and Relentless[1] has utterly ignored statutory sections—and one section in particular—that are crucial for understanding both why the government should lose these cases and, more importantly, why the Chevron doctrine[2] cannot and should not survive in an era of textualism. The relevant statute—the Magnuson-Stevens Fishery Conservation and Management Act—superficially appears complex and hard to understand. […]
In times of crisis such as the 2008 financial crisis and the 2020 COVID-19 pandemic central banks throughout the world engage in interventions with lasting effects on financial markets and the macroeconomy, for better and worse. The negative political consequences of these interventions—fears of politicizing central banking and inflationary concerns about dramatic interventions among them—can dampen […]
In a series of recent opinions, the Supreme Court has threatened to transform the nondelegation doctrine into a device for imposing sweeping limits on congressional authority to empower the regulatory state. But, as a matter of history and logic, the nondelegation doctrine has a quite different purpose. This Article argues that the nondelegation doctrine plays […]
The challenge of financial inclusion is among the most intractable policy problems in banking. Despite living in the world’s wealthiest economy, many Americans are shut out of the financial system. Five percent of American households lack a bank account, and an additional thirteen percent rely on expensive and sometimes predatory fringe financial services, such as check cashers […]
The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention […]
So-called passive index funds—investment funds that are designed to track a pre-specified underlying index—have become a dominant force in the investing landscape, collectively controlling over $12 trillion in assets. It is widely assumed that these funds are obligated to follow their underlying index, and that fund managers cannot, or do not, select portfolios that deviate […]
Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals […]
Mass shootings are a particularly gutting form of American gun violence. The statistics are staggering to the point of numbing, with the issue’s intensity and timeliness enforced day after day, round after round. Gun manufacturers occupy a vital role in the chain of events ending with mass shooting headlines, yet they face little liability for […]
Introduction The Supreme Court heard argument last month in Moore v. United States, a case with potentially broad implications for the income tax system. The case involves a challenge by the Moores, two individual taxpayers, to 26 U.S.C. 965, known as the Mandatory Repatriation Tax (“MRT”), which is a provision of the 2017 tax reform legislation. As […]
Big Tech claims a broad First Amendment right to censor user speech. FCC Commissioners Carr and Simington explain why that’s wrong.