The D.C. Circuit did not release any published opinions on administrative law last week. Its only opinion dealt with a motion to unseal applications for non-disclosure orders filed by the government under the Stored Communications Act, 18 U.S.C. § 2705(b). The orders related to a 2017 grand jury subpoena for records of the chief investigative counsel of the […]
Nothing in the APA prohibits agencies from using computational tools to gather, synthesize, or even recommend policy choices—and agencies already often rely on modeling tools to inform regulatory standards. What the APA requires is that the final rule itself be the product of reasoned judgment—supported by evidence, responsive to significant comments, and explained in a coherent manner. If those conditions are satisfied on the face of the rule, it is unlikely that a court reviewing a challenge to the rule will examine how AI was used in the decisionmaking process, perhaps absent some external reason to suspect overreliance on AI. If, on the other hand, the rule ignores key evidence, fails to address major concerns or alternatives, or offers inconsistent reasoning, it will be struck down as arbitrary regardless of whether AI was used in its development.
In a recent Notice and Comment blog post, Bernard Sharfman and Nick Morgan offer a provocative challenge to the bipartisanship requirements of the Securities Exchange Act of 1934. They argue that “it is highly likely that the partisan balance requirement” in section 4(a) of the Securities Exchange Act of 1934 “will run afoul of the […]
For much of modern constitutional law, courts have treated monetary sanctions as a lesser form of state power: important, perhaps, but fundamentally different from incarceration. Loss of liberty was punishment. Money was accounting. In Ellingburg v. United States, decided on January 20, 2026, the Supreme Court quietly but decisively rejected that distinction. Writing for a unanimous […]
This post is the third contribution to Notice & Comment’s symposium on AI and the APA. For other posts in the series, click here. Much of the emerging thinking about the relationship between administrative law and generative artificial intelligence is premised, expressly or implicitly, on the assumption that AI systems might come to play a leading role […]
Agencies will not be able to rely solely on today’s most ubiquitous forms of AI—namely, those based on ChatGPT and similar large language models—to avoid their obligation under the APA’s arbitrary and capricious standard to understand the problems they seek to solve, assess alternative solutions against legally relevant criteria, and make some kind of forecast about how these alternatives would change outcomes in the world. Administrators’ forecasts need to be about tangible outcomes, not about plausible-sounding words in sentences, however confidently they might be expressed.
This symposium is for AI skeptics, AI believers, and everyone in between.
In the latest round of regulatory controversy around late-night television, the Federal Communications Commission (FCC) issued a Public Notice last week reminding broadcasters of their responsibilities under the equal time rule, Section 315 of the Communications Act. More specifically, the FCC specified that daytime and late-night talk shows had not shown they should count as […]
The ABA Section of Administrative Law & Regulatory Practice is pleased to announce its 2026 Spring Conference will again include a day of in-person academic paper workshops in Washington, DC, on Thursday, May 7th, 2026. The workshops will provide the selected participants with an opportunity to receive useful feedback on their scholarly work. All are […]
Earlier this month, the U.S. Environmental Protection Agency (EPA) finalized a new rule revising its emissions standards for nitrogen oxides (NOx) from new gas-fired power plants and other stationary turbines. Although the new regulations are significantly more lenient than those proposed during the Biden Administration, the final rule is especially significant because it signals that […]
In recent years, some of the Court’s most significant decisions have involved interpretations of foundational administrative statutes. Among these statutes are the Administrative Procedure Act, of course, but also the National Environmental Policy Act, and soon the Federal Reserve Act’s “for cause” removal provision. These procedural statutes have profound impacts on government, jurisprudence, and ultimately […]
The Fifth Circuit’s recent decision in Sayegh v. Bondi, 25-20073 provides a useful illustration of how administrative finality operates under the Administrative Procedure Act (APA), particularly in regulatory schemes that involve multi-stage agency decision-making. Although the case arises in the immigration context, the court’s analysis centers on familiar administrative law issues: when agency action is […]
An e-cigarette manufacturer follows an arduous set of standards to get its market applications approved by the Food and Drug Administration (FDA). The company completes the process as outlined, but the FDA still denies its applications. Why? The FDA changed the rules on a dime after the fact, without public input, without following the rulemaking […]
The D.C. Circuit issued four opinions last week. On the admin law side, it was another mine run week: significant to the parties, of course, but fairly standard applications of fairly settled admin law doctrines. (Outside of admin law, last week’s opinions had an international flair, with the court issuing opinions on the Foreign Sovereign […]
With the recent resignation of Caroline Crenshaw, there are now two vacancies at the top of the Securities and Exchange Commission. The sticking point in filling these vacancies has been President Trump’s unwillingness to appoint Democrats to run our federal agencies. However, assuming the constitutionally required advice and consent of the Senate is provided, what is […]