Notice & Comment

Notice & Comment

Notice & Comment

On the FTC’s Authority to Promulgate Trade Regulation Rules, by Lev Menand and Tim Wu

On April 23, 2024, the FTC finalized a trade regulation rule prohibiting employers from enforcing non-compete agreements against workers. In response, business groups sued and Daniel Crane, a law professor at the University of Michigan, published a piece in Notice and Comment that reported on the views of 17 anonymous online volunteers regarding the fate […]

Notice & Comment

Rays of Hope for the Administrative State, by Peter L. Strauss

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the […]

Notice & Comment

D.C. Circuit Review – Reviewed: Contractual Limits on the Distribution of Discounted Drugs

The D.C. Circuit published one administrative-law opinion last week: Novartis Pharmaceuticals Corp. v. Johnson. Section 340B of the Public Health Service Act requires drug manufacturers to sell certain drugs to certain healthcare providers at a steep discount. Many of these providers contract with pharmacies to help distribute the discounted drugs to their patients. But those […]

Notice & Comment

Nothing to See Here: Misconceptions About the Overtime Rule’s Inflation Adjuster, by Will Dobbs-Allsopp and Reed Shaw 

Last week, several business groups including the National Federation of Independent Businesses filed a lawsuit seeking to invalidate one of the Department of Labor’s top priorities: a final rule issued in April that updates the Fair Labor Standards Act’s (FLSA) overtime salary thresholds to ensure that millions more workers are eligible for extra pay if […]

Notice & Comment

What the Court Did Not Decide in Community Financial, and How That Might Prove Dispositive for Future Challenges to the CFPB’s Funding Statute, by Chad Squitieri

On two occasions, the majority opinion in CFPB v. Community Financial made clear that it was tasked with answering only a “narrow” question concerning the requirements imposed by the Appropriations Clause.  Slip Op. at 1, 5.  The Court’s answer to that narrow question was relatively straightforward: the Appropriations Clause requires no more than “a law […]

Notice & Comment

ACUS Update: Forum on International Regulatory Cooperation (June 3) 

Join the Administrative Conference of the United States (ACUS) on Monday, June 3 (9:30am–3pm ET), for a public forum on international regulatory cooperation.   U.S. and international regulators, leading academic scholars, and other experts in the field will explore the current federal framework for international regulatory cooperation, examine global perspectives, and identify remaining barriers to regulatory […]

Notice & Comment

Saving the Consumer Financial Protection Bureau (and the Constitution) from the Courts, by Christine Kexel Chabot

Administrative law is almost certain to undergo monumental change during the Supreme Court’s current Term.  On May 16, 2024, the Court issued its first in a series of blockbuster administrative law decisions: Consumer Financial Protection Bureau v. Community Financial Services Ass’n. The Court’s 7-2 decision declaring the Bureau’s funding structure constitutional brings good news for […]

Notice & Comment

Ad Law Reading Room: “Ghostwriting Federalism,” by Adam S. Zimmerman

Today’s Ad Law Reading Room entry is “Ghostwriting Federalism,” by Adam Zimmerman, which was recently published by the Yale Law Journal and posted to SSRN. Here is the abstract: Notwithstanding the Supreme Court’s admonition that federal authorities should not “unduly interfere” with state government, federal agencies frequently write state laws. They draft model state acts. […]