(Cross posted from Objective Intent) Recently I spoke at the annual meeting of the Food and Drug Law Institute (FDLI) on Eagle v. Azar, which is currently on appeal to the D.C. Circuit. At first blush the case seems of limited importance, because Eagle Pharmaceuticals is simply challenging FDA’s interpretation of statutory language that has […]
I have learned a lot from the articles in which Nick Parrillo summarized and built on the valuable empirical study of guidance documents that he conducted for ACUS and from the many comments on Nick’s work that scholars have published in the Notice and Comment symposium on Nick’s work. I hope to add to that […]
For an event honoring the scholarship of Professor Bill Funk, another contributor to this on-line symposium, I have written an essay, Domesticating Guidance, summarizing my thinking about the use and misuse of agency guidance documents. No one doubts that that the soft law of guidance documents, which do not require notice and comment under the […]
Summary: This three-part series discusses a recent D.C. Circuit opinion affirming dismissal of a claim that FOIA mandates publication of all Office of Legal Counsel (“OLC”) opinions. This post summarized OLC’s publication practices and the D.C. Circuit case — Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Justice. Succeeding posts will critique […]
Summer is nearly here, and for fellow tax nerds in need of beach reads, I’ve assembled a list of the 50 most widely cited tax law journal articles. The list is inspired by (and uses the same methodology as) Fred Shapiro and Michelle Pearse’s essay, The Most-Cited Law Review Articles of All Time. The list […]
I wish Archie Harrison Mountbatten-Windsor a long and happy life. But I don’t want to hear about it. Over 60 million people live in the United Kingdom. I know a fraction of a fraction of a single percent of them. Yet for some reason, Americans know a great deal about young Mr. Mountbatten-Windsor. And by […]
Nick Parrillo’s publications are like Robert Caro’s – so synoptic, and so exhaustively researched, that it’s inconceivable that anyone could do a better job. As a result, it’s a daunting prospect to quibble with any of his conclusions and recommendations – much less to dispute them fundamentally. What’s more, as a practitioner – and one […]
Everyone familiar with the intertwined spheres of administrative law and regulatory practice knows that federal agencies routinely issue informal, subregulatory pronouncements, referred to collectively as “guidance,” articulating their views regarding the law’s requirements. Agency use, and arguable abuse, of guidance to direct the behavior of regulated parties and agency employees is a perennial topic of […]
The REINS Act would have required Congress to approve all new “major” rules before they could go into effect. A significant re-ordering of the regulatory process, it was one of many regulatory reform bills that was introduced but not enacted in the 115th Congress. The REINS Act reflected aspects of a larger movement to strengthen the […]
The year 2019 may prove to be a landmark one for the question of the proper role of agency guidance documents (or “non-legislative rules”). Within the next month or two, the Supreme Court will reach a decision on Kisor v. Wilkie where the question of judicial deference to agency’s interpretation of their regulations is at […]
Nick Parrillo’s article Federal Agency Guidance and the Power to Bind is a truly admirable study of the realities underlying agencies’ creation and use of guidance documents. It will doubtless stand as a definitive examination of the practical factors that can cause informal agency pronouncements to exert coercive pressure on private persons, even when those […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month I highlight a fascinating loophole in APA § 701(a)(2)’s preclusion of judicial review for action “committed to agency discretion by law.” In practice, Article III courts recognize two types of actions […]
I don’t know, and I doubt the Trump administration does either. But we may soon find out. With the Trump administration’s encouragement, Tennessee is moving ahead with a waiver to block grant its Medicaid program under section 1115 of the Social Security Act. “Currently,” as Stephanie Armour explains at the Wall Street Journal, “Tennessee, like […]
Inhabitants of the administrative state who are concerned about the rule of law may be comforted by the fact that there are rules about making rules. The Administrative Procedure Act (“APA”) requires regulatory agencies to expose prospective rules to democratic processes, most notably the notice and comment period, before they become binding. “Guidance” – regulatory […]
Regulated entities love guidance when they agree with it or are ambivalent about it. It is valuable information to have. Not surprisingly, however, if they disagree with the substance of the guidance, and the guidance will impose costs of one sort or another on them, they do not like it. They have a choice in […]