“Engineering Rules” by Joanne Yates and Craig Murphy recounts stirring tales from the noble brotherhood of engineers, on a mission to improve the world through standard-setting. The engineers tackle nonuniform screw threads, creating the first national screw thread standard (the appealingly named “Whitworth thread”), address railway cars of varying sizes and shapes, and devise the […]
Over the past years, as standardization took an increasing place in my research agenda, I frequently thought of the ancient Indian fable of the Blind Men and the Elephant.[1] In this story, a number of blind men observe an elephant: each of them comes into contact with one part of the elephant only, leading each […]
Sometimes a student question leads to an interesting discovery. In my Administrative Law class, I was covering the issue of appointment of officers and discussing the important Appointments Clause cases of Morrison v. Olson, 487 U.S. 654 (1988) (appointment of the independent counsel (“IC)” under the Ethics in Government Act) and Lucia v. SEC, 138 […]
Engineering Rules: Global Standard Setting since 1880 [1] is a fountain of information about the origins, use, and changes in the world of standard setting. To even the casual reader, it makes a convincing case that those who started convening groups of knowledgeable volunteers have performed a very useful service by creating standards for many […]
A tide of skepticism of the administrative state has been rising among members of the judiciary and the academy—a trend only encouraged by the Trump administration’s resistance to the modern federal bureaucracy. In the last two Supreme Court Terms, this skeptical upswell has translated into a number of remarkable cases challenging key tenets of administrative […]
On September 3, 2019, the Federal Communications Commission released a Notice of Proposed Rulemaking intended, as the caption of the proceeding has it, to promote “streamlining of administrative hearings.” The agency declares that the “procedures outlined here are designed to supplement the Commission’s current administrative law judge referral process and promote more efficient resolution of […]
The D.C. Circuit clearly has an outsized role in the development of administrative law. But it’s hardly the only court of appeals deciding important administrative law cases. Other people have posted to highlight the Fifth and Ninth Circuits’ contributions. This post is to make three points about why the Federal Circuit may have the strongest […]
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. Unanimous Panel Puts Ninth Circuit’s Stamp on Kisor v Wilkie Administrative law doctrines develop in lower courts within the boundaries set from above by the Supreme […]
The Supreme Court issued its opinion in Lucia v. SEC on June 21, 2018. The Lucia Court held that “the [Securities and Exchange Commission’s] ALJs are Officers of the United States, subject to the Appointments Clause” and not “simply employees of the Federal Government.” The SEC’s ALJs are “Officers of the United States” because they […]
Building on Chris Walker’s excellent day-of analysis of the Supreme Court’s decision in Department of Commerce v. New York, I write to provide insight on the Court’s treatment of administrative records in that case and to preview an essay that Steven Platt and I authored that analyzes the decision on that score and predicts consequences […]
In June 2016, five months before the election of President Donald Trump, Senator Elizabeth Warren wrote a post for the Regulatory Review on “corporate capture of the regulatory process.” It highlighted myriad opportunities in the rulemaking process “for powerful industry groups to tilt the scales in their favor.” The “notice and comment” process offered a key example: […]
In an earlier post in this series, two of us (Cortland and Tani) described how the notice-and-comment process has entered the arsenal of a range of groups and organizers, many seeking to challenge the policies of the current administration. We made the case by highlighting grassroots efforts to explain to the public what notice-and-comment is and how to participate […]
During its formative years, American administrative law was haunted by the specter of communism. At a time when democratic socialism is on the rise in American politics, it’s worth pausing to reflect upon this history—a history in which fears of radical political change inspired judicial and legislative efforts to limit the administrative state’s capacity to […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” With the passing of Justice John Paul Stevens, RIP, I’ve read commentaries suggesting his Chevron deference “legacy” is at risk. In fact, these pundits are mistaken. While it’s true that Justice Stevens penned […]
In Bending the Rules: Procedural Politicking in the Bureaucracy, Rachel Potter examines agency strategies for coping with presidential, congressional, and judicial review of their proposed rules. Scholars have long thought that agencies substantively moderate their rules to anticipate concerns likely to be raised in the course of the political process and subsequent litigation. Prof. Potter […]