Notice & Comment

Notice & Comment

Notice & Comment

Context-Specific Seminole Rock Reform, by Aneil Kovvali

Applying deference under Bowles v. Seminole Rock, 325 U.S. 410 (1945), courts have deferred to agency interpretations of agency rules for decades. But a recent concern that the doctrine permits agencies to combine the powers of lawmaking and law interpretation has prompted Congress and the courts to consider reform. In a new Essay, forthcoming in […]

Notice & Comment

Finality, Guidance Documents, and San Francisco’s Challenge to a Guidance Repeal, by Alisa Tiwari, Ryan Yeh, and Christine Kwon

San Francisco City Attorney Dennis Herrera filed a lawsuit[i] on April 5, 2018, challenging U.S. Attorney General Jeff Sessions’s repeal of six Department of Justice (DOJ) civil rights guidance documents. The lawsuit argues that Sessions rescinded these civil rights protections for marginalized communities without meaningful explanation, in violation of the Administrative Procedure Act (APA). *** […]

Notice & Comment

Plausible Deniability: Selective Disclosure of Information and FOIA

Unofficial leaking has been in the news recently, and is never far away from public consciousnesses.  But “[g]overnment officials and military officers, from the President on down, routinely authorize leaks for policy or political purposes.”  Jack Nelson, U.S. government Secrets and the Current Crackdown on Leaks 2 (2002), accessible at, https://shorensteincenter.org/wp-content/uploads/2012/03/2003_01_nelson.pdf?x78124. Suppose intelligence officials want […]

Notice & Comment

Call for Submissions: ABA AdLaw Section’s Administrative and Regulatory Law News

The editorial board of the Administrative and Regulatory Law News (ARLN), the quarterly publication of the ABA Section of Administrative Law and Regulatory Practice, is seeking submissions on current topics in administrative law from practitioners, academics, judges, or anyone else with an interest in administrative law. Submissions should be approximately 1500-2000 words and may be submitted to […]

Notice & Comment

On the Supreme Court Docket — Guido v. Mt. Lemmon School District: Numerosity Requirements in the ADEA and Other Employment Discrimination Statutes (Part II)

This is the second of two posts regarding Guido v. Mt. Lemmon School District,  Dkt. No. 17-587, currently on the Supreme Court docket for the October 2018 Term.  The case involves the applicability of Age Discrimination in Employment Act of 1967’s (ADEA) numerosity requirement, 29 U.S.C.A. § 630(b), to public employers. In my prior post […]

Notice & Comment

Over at TaxProf Blog: Glogower on Wallace on OIRA/Presidential Review of Tax Regulations

Over at TaxProf blog, my colleague Ari Glogower reviews Clint Wallace‘s Centralized Review of Tax Regulations, which is forthcoming in the Alabama Law Review. Last year I read an earlier draft of Wallace’s fascinating paper, which has become all the more important in light of the memorandum of understanding the White House’s Office of Information and Regulatory Affairs […]

Notice & Comment

Disparate Impact and the Administrative Procedure Act

This post was co-authored with Eli Savit, an attorney and adjunct professor at the University of Michigan Law School. In a New York Times op-ed this week, we argued that a Michigan bill that would impose work requirements on Medicaid beneficiaries violates Title VI of the Civil Rights Act of 1964, which prohibits any program […]

Notice & Comment

On the Supreme Court Docket — Guido v. Mt. Lemmon School District: Numerosity Requirements in the ADEA and Other Employment Discrimination Statutes (Part I)

The U.S. Supreme Court granted certiorari in Guido v. Mt. Lemmon School District.  — U.S. — , 138 S.Ct. 1165 (February 26, 2018).  Presumably, it did so to resolve a Circuit split regarding the application of the Age Discrimination in Employment Act of 1967’s (ADEA) numerosity requirement, 29 U.S.C.A. § 630(b), to public employers.  In […]

Notice & Comment

Michigan’s Discriminatory Work Requirements

That’s the title of an op-ed that Eli Savit and I just published at the New York Times. For those who are too poor to afford health insurance, Medicaid is a lifeline. This joint federal and state program doesn’t care whether you’re white or black, Christian or Muslim, Republican or Democrat, a city-dweller or a […]

Notice & Comment

Quick Reaction to Bray’s Argument that the APA Does Not Support Nationwide Injunctions

Over at the Volokh Conspiracy, Sam Bray has this fascinating and timely post on why the Administrative Procedure Act (APA) does not allow for nationwide injunctions: Sometimes the question is asked whether the Administrative Procedure Act authorizes courts to give national injunctions, because it says that a “reviewing court shall . . . hold unlawful and […]