Would LeBron James — one of the best basketball players of all time — be a good professional football player? Or, to a bit more realistic, had LeBron James never played basketball at all but instead had devoted himself to football, would he have thrived in the NFL? These are the sorts of questions that […]
The Supreme Court will hear oral arguments next week about whether the Trump Administration can unwind DACA, the Obama Administration’s policy of “Deferred Action for Childhood Arrivals.” Under the DACA program, the government invited large numbers of undocumented immigrants who arrived in the United States as young children and met other criteria to apply for […]
In Calvillo Manriquez v. DeVos, a class action lawsuit against the Department of Education and Secretary Betsy DeVos for unlawful collection of student loans, U.S. Magistrate Judge Sallie Kim on October 24 issued an order finding the defendants in civil contempt, and ordering them to pay $100,000 in sanctions, for enaging in collection activities in […]
Administrative law is generally conditioned on agency action. Notice and comment rulemaking mandates “the agency shall give interested persons an opportunity to participate in the rule making.” 5 U.S.C. § 553(c). Chevron deference contemplates judicial consideration of “an agency’s construction of the statute which it administers,” and Auer deference requires judges to consider “the agency’s […]
This short post will do two things. First, it will heap praise on Professor Parrillo’s article, Federal Agency Guidance and the Power to Bind: An Empirical Study of Agencies and Industries. This terrific and engaging work sheds valuable light on what it means, practically, for policy statements to be “practically binding.” One can reasonably hope […]
On June 18, 2019, Facebook announced its plan to create a global cryptocurrency named Libra. The social-networking giant wants to offer any person holding a smartphone with an internet connection a stable and secure way to transfer money and make payments all over the world. Libra will be built on a blockchain and backed by […]
If I had to reach a common conclusion from comparing Presidential Laws and the Missing Interpretive Theory by Professor Tara Leigh Grove and Legislating in the Shadows by Professor Christopher Walker, it would be that “all legislative powers” vested in Congress by the Constitution seem to be leaking out of that body and into the […]
Controversies over the appropriate allocations of policymaking authority between the federal and state governments are almost as old as the Republic, as the Supreme Court pointed out in a 1992 decision involving the distribution of authority over radioactive waste disposal. Yet, the disputes never seem fully resolved. Certainly that is true of environmental regulation, as […]
Pierre Larouche is right, but it is not just legal scholars: almost everyone who encounters the vast (but rarely noticed) world of private standard setting ends up like the blind men and the elephant of the fable. Most scholars of standardization, and even standards setters themselves, can only describe those parts with which they have […]
During the week of September 16, 2019, a little-noticed corner of the financial markets came under severe stress. In times of ultra-low interest rates, rates in the repo market spiked to nearly 10%. Repo, in this case, means “repurchase agreement,” a fairly safe lending operation, in which money is exchanged for highly-rated securities and exchanged […]
As Aaron Nielson posted Wednesday, President Trump issued two new executive orders this week that impact the use of guidance by executive agencies. Taken together, the EOs seek to ensure the “transparent” and “fair” use of guidance documents by requiring agencies to: (a) develop procedures for issuing guidance documents; (b) provide reasonable notice and easy […]
Following up on Aaron Nielson’s post: The White House yesterday issued two executive orders relating to agency guidance documents. The first is titled Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents, which I’ll call the Guidance EO. The second is titled Promoting the Rule of Law Through Transparency and Fairness […]
In Multiple Chancellors, Professor Bray argued that federal courts should give only a “plaintiff-protective injunction, enjoining the defendant’s conduct only with respect to the plaintiff,” “[n]o matter how important the question and how important the value of uniformity,” with respect to federal defendants. (MC, p. 420; p. 424 (noting that this rule would “logically apply” […]
The two anti-guidance executive orders reflect a promise kept to industry, which has vociferously complained about enforcement on the basis of guidance. The campaign against guidance made some progress at DOJ with a 2017 memo issued by the Attorney General designed to “end,” at least as a press release put it, the “practice of regulation […]
The D.C. Circuit released its opinion in Mozilla v. FCC, which largely upheld the Federal Communications Commission’s (FCC’s) Restoring Internet Freedom order, on October 1, 2019. Much of the ensuing commentary and policy debate will no doubt center on the fact that the court upheld the substance of the order but struck down the provision […]