Notice & Comment

Results for: Lubbers

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Please Spare Us the Return of “Formal” Rulemaking, by Jeffrey S. Lubbers

On December 7, the Department of Justice held an unusual “summit” on reforming the Administrative Procedure Act in its Great Hall.  The keynote speaker was Deputy Attorney General Jeffrey A. Rosen. The major theme of its three panels was that it was past time for the APA to be “modernized.”  Various suggestions were heard ranging […]

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A Good Student Question on the Appointments Clause—And a Judge’s Answer, by Jeffrey Lubbers

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 […]

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Patricia Wald’s Great Legacy, by Jeffrey Lubbers

The world (and especially the world of Administrative Law) suffered a great loss on January 12 when Patricia Wald succumbed to cancer at the age of 90. The Washington Post’s excellent obituary was entitled, “Patricia Wald, pathbreaking federal judge who became chief of D.C. Circuit, dies at 90.” She was a pathbreaker in more ways […]

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(If the Supreme Court Agrees) The SG’s Brief in Lucia Could Portend the End of the ALJ Program as We Have Known It, by Jeffrey S. Lubbers

My symposium entry is an updated version of my February 26, 2018 post to this blog. I should also note that I signed the amicus brief authored by Professor Pierce and his colleagues, primarily because it urges the Court not to agree with the SG’s brief concerning removal protection for ALJs.]  Anyone interested in preserving […]

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Auer Deference with a Foreign Twist, by Jeffrey Lubbers

For some years, there has been a lot of debate (including in a symposium in this blog) about the continued viability of the Auer/Seminole Rock deference doctrine, under which, subject to various exceptions, courts are supposed to give an agency’s interpretation of its own regulations “controlling weight, unless that interpretation is plainly erroneous or inconsistent […]

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SG’s Brief in Lucia Could Portend the End of the ALJ Program as We Have Known It, by Jeffrey S. Lubbers

Anyone interested in preserving the independence of Administrative Law Judges (ALJs) should be alarmed at Solicitor General Neal Francisco’s brief (nominally) on behalf of the SEC in the case pending at the Supreme Court, Raymond J. Lucia Petitioners v. The Securities and Exchange Commission.  I say “nominally” because the front page of the brief itself […]

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GAO Finds EPA Actions in WOTUS Rulemaking to Violate Anti-Propaganda and Anti-Lobbying Prohibitions, by Jeffrey S. Lubbers

There was an interesting development yesterday in the controversy over EPA’s aggressive social media campaign in support of its “Waters of the United States” rule. This rulemaking, conducted in conjunction with the Army Corps of Engineers, on was the subject of a panel at the recent ABA Adlaw Section Fall meeting. The Final Rule was […]

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Engineering Rules: Chronicling the Development of A Third Way

Markets vs. Regulation Many of us think about regulation in somewhat dichotomous terms, namely as a choice between free markets and government regulation.  Under the standard view, the market optimally provides many goods and services.  In the competition of various firms pricing their goods and services, the “hidden” hand” of the market will lead to […]

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Bending the Rules: Procedural Politicking or Bureaucratic Perfidy (Part I), by Bernard Bell

“Procedures are politics.”  P. 201. Rachel Potter’s book, Bending the Rules: Procedural Politicking in the Bureaucracy, examines agencies’ choices in structuring their rulemaking processes.  One might assume that each agency follows a consistent procedure across all its rulemakings, but Prof. Potter suggests otherwise.  For instance, comment periods often vary greatly, p. 119, as do choices […]

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Thacker v. Tennessee Valley Authority: The Relationship Between Judicial Review and Tort Liability (Part I)

On September 28, the Supreme Court granted certiorari in Thacker v. Tennessee Valley Authority (“Thacker v. TVA”).  Order, Dkt. 17-1201, 2018 WL 4650382.  (The docket sheet is available here.)  The case raises the question of whether an implied discretionary function exception, akin to that in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), bars […]