The World Health Organization (WHO) has urged countries to trace and track every COVID 19 case. Tracking the spread of the virus is essential to effective mitigation of this health pandemic. During the ongoing worldwide healthcare crisis, one of the data-driven tools that has been shown to be effective in curbing the spread of this […]
Petitions for certiorari from the Supreme Court typically raise legal questions that are all too familiar, as cert ordinarily is available only to resolve circuit splits. Now and then, however, a case is “cert-worthy” precisely because it turns on something novel—even astonishing. Such is Monex v. Commodity Futures Trading Commission, in which the CFTC has […]
For those who spend much of their time litigating against the Federal Government, the routine invocation of standing, political question, ripeness, and no subject matter jurisdiction are reminiscent of the final words of Claude Rains in Casablanca: “Round up all the usual suspects.” Thus, it was no surprise when the House Judiciary Committee sought to […]
The fate of the CFPB, and potentially of agency independence writ large, hinges on the Supreme Court’s decision in Seila Law v. CFPB, which was argued before the Supreme Court last week. Most of the commentary has focused on how the Court might distinguish the CFPB from other independent agencies like the SEC and FTC, […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. The Ninth Circuit’s Shadow Silly Docket Of late, there’s been a lot of talk about the Supreme Court’s sinister sounding “shadow docket”—that is, orders and decisions issued by […]
One of the most gratifying features of recent scholarship debating the constitutionality of administrative power has been the resurgence of interest in the founding. Not only critics of administrative power but also its defenders hark back to the Constitution’s early history. One of the most recent such justifications of administrative power in historical terms is […]
In L.M.-M. v. Cuccinelli, Judge Randolph Moss, a federal judge in the District of Columbia, issued an important opinion setting aside policies limiting asylum applications known as the Asylum Directives. The court held that Kenneth Cuccinelli, who issued them, cannot legally serve as “acting” Director of the United States Citizenship and Immigration Services (“USCIS”) under […]
This post is a reminder to please submit abstracts by March 20 for the Roundtable. The call for papers is below: Yale Law School is pleased to host the fifth annual Administrative Law New Scholarship Roundtable on June 8–9, 2020, in New Haven, Connecticut. Approximately twelve authors will workshop their papers in a series of individual […]
Chevron deference—the doctrine that calls for courts to defer to reasonable agency statutory interpretations—is under siege. A majority of current Supreme Court Justices have, at one time or another, expressed concern over its domain, operation, or very existence. Two state courts have overruled their state-law equivalents. Some welcome Chevron’s demise as an antidote to an […]
The administrative law community is coming to terms with the real possibility that the nondelegation doctrine will be disinterred. For “anti-administrativists” and “administrative-skeptics,” revival of this doctrine is something of a nuclear option that could lay waste to entire government agencies, programs, and statutes. For those convinced that granting policymaking discretion to the executive […]
Cambridge University Press has just published a fascinating new volume of essays about International Law and the Cold War, edited by Matthew Craven, Sundhya Pahuja, and Gerry Simpson. This volume covers a broad array of topics, including the crucial question of how Cold War politics affected or inspired new legal instruments. Tensions between ‘East’ and […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases. Big Doctrinal Leap on “Competitor’s Standing” Continuing with Aaron’s theme from last Friday, this month’s lead story addresses the doctrinal leap taken by the Ninth Circuit […]
Admittedly, prior to reading The President’s Budget as a Source of Agency Policy, I thought of budgetary control of an agency as a congressional tool via the appropriations process. In this article, however, Professor Eloise Pasachoff illuminates the Executive Branch’s role through Research Management Offices (RMOs), a little-studied component of the Office of Management and […]
There are currently three petitions for cert pending before the Supreme Court that seek review of the FTC’s practice, under Section 13(b) of the FTCA, of seeking monetary awards dubbed “equitable restitution” or “equitable disgorgement.” This extra-statutory practice coopts the power of a court sitting in equity to garner monetary judgments not conferred by Congress, […]
I’m delighted to announce this Call for Papers – please circulate widely – and please contact me with any questions: Yale Law School is pleased to host the fifth annual Administrative Law New Scholarship Roundtable on June 8–9, 2020, in New Haven, Connecticut. Approximately twelve authors will workshop their papers in a series of […]