In light of the FTC’s vote yesterday to adopt a rule banning non-compete agreements, readers might be interested to see what the Attorney General’s Committee on Administrative Procedure said about FTC rulemaking in its 1940 monograph. The Committee prepared 26 monographs examining the actual practices and procedures of administrative agencies, and this research informed a […]
Last week was criminal law week at the D.C. Circuit. All three opinions issued in criminal appeals. I’ll turn to those shortly, but first something a little closer to this blog, if a bit further back in time: two weeks ago, fellow blogger, Judge Thomas B. Griffith, visited Mizzou Law School to speak about our […]
Our Constitution is not and never was perfect. The Framers intended for it to undergo amendment as required to maintain the spirit of the Revolution and to prevent the recurrence of the weaknesses that saddled our government under the Articles of Confederation. Yet, amending the Constitution has become nearly impossible in our current political environment. […]
Many state and local officials host social media sites and use them to converse with followers on matters related to their governmental responsibilities, among other things.[1] Not surprisingly, many choose to block from their sites certain members of the public they find disagreeable.[2] Being disagreeable, or at least in disagreement with such actions, blocked followers […]
The Duke Law Journal invites papers for its 55th Annual Administrative Law Symposium, to be held in spring 2025 at Duke University School of Law in Durham, North Carolina. We will choose symposium articles in August, to allow for submissions analyzing the future of administrative law in the context of major cases like Relentless Inc. […]
A North Dakota truck stop opened its doors in 2018. It pays debit card “swipe fees” to banks at the maximum rate set by Federal Reserve regulations promulgated in 2011. May it challenge the regulations under the Administrative Procedure Act, or APA, as (1) arbitrary and capricious and (2) ultra vires, or in excess of […]
The D.C. Circuit decided two cases last week, National Association of Realtors v. United States, and Hikvision USA, Inc. v. FCC. In National Association of Realtors, appellee—a trade association for the real-estate industry—sought to set aside a subpoena issued by DOJ’s Antitrust Division after the Division closed and then reopened an investigation into some of […]
Antitrust scrutiny of “big tech” is hardly new, but the Justice Department’s recent monopolization case against Apple caps an unprecedented federal antitrust offensive against major tech firms. There are at least five open monopolization matters, beginning with the DOJ’s 2020 Google search complaint, and followed by cases against Facebook/Meta, Amazon, a second case against Google […]
Today’s Ad Law Reading Room entry is “Public Patent Powers,” by Laura Dolbow (soon to be of Colorado Law), which is forthcoming in the Michigan Law Review. Here is the abstract: Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This […]
In a spirit similar to that of recent great posts in this forum, this blog post suggests yet another way agencies can preemptively insulate certain rules from Major Questions Doctrine (MQD) challenges. In particular, we focus on how overlapping federal, state and international regulatory regimes may reduce the incremental costs of rulemakings, and therefore weigh against a finding […]
Background The SECURE 2.0 Act (“SECURE 2.0” or “the Act”) contains a host of recent changes intended to make sure employers, the federal government, and the retirement plan industry are helping Americans save more for retirement. Enacted on December 29, 2022, SECURE 2.0 is an extension of the Setting Every Community Up for Retirement Enhancement […]
Last week, the D.C. Circuit issued two administrative law opinions, one involving energy law and the other labor law. In Sierra Club v. FERC, the D.C. Circuit held that FERC was not arbitrary and capricious when it extended the deadlines for construction of two pipelines, one in New York and the other in Texas. FERC […]
Prior to the COVID pandemic, most broadband service providers (“BSPs”) offered heavily discounted but capable internet plans to lower-income households for about $10 to $15 per month. Dissatisfied with these market-based solutions, the Infrastructure Investment and Jobs Act of 2021 (“IIJA”) established the “Affordable Connectivity Program” or “ACP.” Under the ACP, the federal government provides a $30 per month […]
This week the George Mason Law Review published the accompanying print issue to its Fall 2023 Symposium, Chevron on Trial: The Supreme Court and the Future of Agency Authority and Expertise. The focus of the symposium was the fate of Chevron deference in light of the Supreme Court’s pending decisions in Loper Bright Enterprises v. […]
There has been a quiet but noteworthy development in the litigation of the Environmental Protection Agency’s Good Neighbor Rule—adding a new administrative law wrinkle to a case with already big administrative law implications. On February 21, the Supreme Court heard oral argument on a set of stay applications, consolidated under Ohio v. EPA, that ask the Court to block […]