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 […]
Law is often thought to provide the bedrock of order in modern society. But as important as law can be, social and economic order also emerges from a host of non-legal norms and non-governmental institutions. In their new book, JoAnne Yates and Craig Murphy trace the history of non-legal institutions dedicated expressly to producing order: […]
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. Isn’t Textual Ambiguity a “Yes” or “No” Question? In Kisor v. Wilkie, the Supreme Court purportedly upheld the Auer doctrine of judicial respect for an agency’s […]
JoAnn Yates and Craig Murphy compiled a compelling and enjoyable history of private standardization from the late 19th to the earliest 21st century. I read the book from the perspective of an empirical economist who studies today’s Standards Development Organizations (SDO). Economic analysis is often oblivious of the history of the organizations it studies, and […]
Adam Smith famously observed that self-interest serves the public interest, because markets act as “an invisible hand to promote an end which was no part of his intention.” To which Finley Peter Dunne offered a rather less sanguine response: “A lie with a purpose is one of the worst kind, and the most profitable.” In […]
Yates and Murphy’s Engineering Rules: Global Standard Setting Since 1880 provides a fascinating account of almost a century and a half of standard setting; of many of the men – and the few women –who were the drivers of these rule-making processes and who in many fields took them to the international level as early […]
“Engineering Rules” is a clever triple entendre, evoking rules (the industrial standards that are its concern), the emergence of engineering (the profession largely responsible for their creation) and the consensus processes developed over time (the engineering) by which they have been created. The book is an extraordinarily detailed history of the movement from national to […]
Professor Mila Sohoni is the author of a string of significant articles on administrative law, and two of her forthcoming articles are about national injunctions. One of these is The Lost History of the “Universal” Injunction, which is forthcoming in the Harvard Law Review. The article is a vigorous argument that national injunctions are in […]
JoAnne Yates and Craig N. Murphy’s new book Engineering Rules: Global Standard Setting Since 1880 (Johns Hopkins Univ. Press, 2019) offers a comprehensive and detailed institutional history of international standardization from its origins in the nineteenth century through the present day. Especially with regard to its treatment of early- and mid-twentieth century standardization efforts and […]