Notice & Comment

Notice & Comment

Notice & Comment

Wednesday’s Good Neighbor Argument Showed Why the Supreme Court Should Not be a Court of First Instance in Complex Administrative Law Cases, by Megan M. Herzog and Sean H. Donahue

On Wednesday, the Supreme Court heard oral arguments on a set of stay applications, consolidated under the caption Ohio v. EPA, that ask the Court to block the Environmental Protection Agency’s Good Neighbor Rule. The rule sets out requirements for 23 upwind states to meet their obligations under the Clean Air Act not to contribute to […]

Notice & Comment

Cost-Benefit Analysis in Polarized Times, by Jonathan S. Gould

For a half-century, cost-benefit analysis has been a mainstay of the regulatory state. Presidents of both parties have either promulgated or retained executive orders mandating regulatory cost-benefit analysis. Many have sought to expand its scope. While so much about regulatory law and policy polarizes the two parties, cost-benefit analysis finds support among Republicans and Democrats alike. […]

Notice & Comment

Call for Papers: The Antiquities Act and Judicial Review of the President’s Statutory Powers 

How should courts review the president’s statutory powers? It’s one of the most vexing questions in administrative law.  It’s easiest to state the problem by comparing the president and agencies as delegees of legislative authority. Usually, Congress delegates regulatory authority to administrative agencies. Sometimes, however, Congress delegates directly to the president. Here, each is an […]

Notice & Comment

Brand X is Right There in Chevron

The Supreme Court recently heard oral argument in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, and so the administrative law world is (especially) abuzz about the possible imminent demise of Chevron deference. Wrapped up in the conversation is the future of a related case, Brand X, in which the Supreme […]

Notice & Comment

Ad Law Reading Room: “Not-So-Special Solicitude,” by Katherine Mims Crocker

Today’s Ad Law Reading Room entry is “Not-So-Special Solicitude,” by Katherine Mims Crocker. Here is the abstract: In a high-profile case last term about state standing to sue in federal court, Justice Gorsuch deemed it “hard not to wonder why” the majority said “nothing about ‘special solicitude.’” The silence was indeed surprising, for in a […]

Notice & Comment

The platforms should win the NetChoice content moderation cases—but narrowly, by Kyle Langvardt & Alan Z. Rozenshtein

Later this month the Supreme Court will hear First Amendment challenges to two state laws that regulate the content policies of large social media platforms. NetChoice v. Paxton involves a 2021 Texas statute that makes it unlawful for platforms to restrict content based on “viewpoint.” Moody v. NetChoice, meanwhile, involves a 2021 Florida law that prohibits most moderation of […]

Notice & Comment

Overruling Chevron and FDA Decision-Making, by Nikhil Chaudhry, Dr. Reshma Ramachandran, and Dr. Joseph Ross

I. Introduction The recent Supreme Court oral arguments in Loper Bright and Relentless demonstrate the potential dire public health consequences of overruling the Chevron doctrine. The Food and Drug Administration (FDA) relies on broad judicial deference granted by Chevron, with the primary goal of utilizing scientific and clinical expertise to protect the health and safety of the public. Through implementation of the Federal […]

Notice & Comment

The Ascertainable Standards Found in the Staggers Rail Act of 1980, by Bernard S. Sharfman

If one has enough resolve, one should always be able to find “ascertainable standards” embedded in a regulatory statue.  Ascertainable standards are both (1) policy objectives that the regulatory agency must use in its decision-making, including rulemaking, and (2) what a reviewing court will use when determining if the agency has acted in an “arbitrary and […]

Notice & Comment

A Response to Brendan Carr and Nathan Simington on the Market Power of Social Media Platforms, by Sarah Oh Lam

In a recent article, FCC Commissioners Brendan Carr and Nathan Simington interpreted constitutional protections of Texas Law HB20. They describe social media platforms as “dominant” with “market power,” similar to the appellate courts and parties in the NetChoice cases.[1] As economists, my colleagues and I filed an amicus brief in support of neither party in these cases to clarify these economic […]

Notice & Comment

American Journal of Legal History Special Issue: Histories of Executive Power

The American Journal of Legal History has just published a special issue on “histories of executive power,” including a paper by Aaron Nielson and me entitled The Early Years of Congress’s Anti-Removal Power. These papers were first presented at a Stanford Constitutional Law Center conference, organized by Michael McConnell and Jed Shugerman, in May 2022. […]