Notice & Comment

Notice & Comment

Notice & Comment

What Regulatory Reform Legislation Might Pass This Congress?

House and Senate committees have been doing a fair bit of work behind the scenes on regulatory reform legislation lately. This post focuses on the legislation that appears to have the greatest odds of being enacted into law and outlines a possible path forward. On October 7, 2015, the Senate Homeland Security & Governmental Affairs […]

Notice & Comment

Update on FDA Tobacco Litigation

On Wednesday, I spoke on a panel at the Food & Drug Law Institute’s FDA Regulation of Tobacco Products Conference. I provided an update on two pending lawsuits involving industry challenges to FDA’s tobacco-related actions. (My slides, as well as those of the other presenters, can be downloaded from the conference link.). The first case, […]

Notice & Comment

Administrative Law meets Qualified Immunity

Before entering the academy, I had an idea: Why not apply administrative law principles to certiorari? Whether to grant cert is a discretionary decision; administrative law is concerned, perhaps above all else, with how to manage the dangers and benefits of discretion; why not then apply the lessons from administrative law to certiorari? After a […]

Notice & Comment

Using Tax Exceptionalism to Beat Microsoft

In a prior post, “The IRS’s Mercenaries,” I explained how the IRS has taken extraordinary steps to battle Microsoft over the tax consequences of some of the company’s international transactions. In short, the IRS hired a private law firm to perform some audit and litigation related functions, and a federal district court is currently examining […]

Notice & Comment

DHS Proposes Changes to the Freedom of Information Act, by Elisabeth Ulmer

On July 29, 2015, the Department of Homeland Security (“DHS”) proposed a rule to amend its regulations under the Freedom of Information Act (“FOIA”). The DHS states that it would like “to update and streamline the language of several procedural provisions, and to incorporate changes brought about by the amendments to the FOIA under the […]

Notice & Comment

Should Judges Who Sit on the Sentencing Commission Rule on the Legality of Sentencing Guidelines?

A few weeks ago, in United State v. Matchett, the Eleventh Circuit rejected a void for vagueness challenge to the career offender Sentencing Guideline, U.S.S.G. § 4B1.2(a)(2), which contains language that is identical to statutory language in 18 U.S.C. § 924(e)(2)(B). The U.S. Supreme Court found that statutory language to be unconstitutionally vague at the […]

Notice & Comment

D.C. Circuit Review – Reviewed: The Frank Easterbrook Edition

Judge Frank Easterbrook is an extraordinary jurist. He’s prolific; influential*; and scholarly. He also wields a sharp pen (e.g., “This case pits the twenty-first amendment, which appears in the Constitution, against the ‘dormant commerce clause,’ which does not.”). Even if you disagree with him, he always has interesting things to say. And that includes his […]

Notice & Comment

The DOJ OLC College of Law [updated 10/9]

On the administrative law professor email listserv, my colleague Peter Shane sparked an intriguing discussion about the impact of the Justice Department’s Office of Legal Counsel (OLC) on administrative law scholarship and the legal academy more generally. With permission, I’m reprinting a (slightly edited) version of his initial email to the listserv: I recently received […]

Notice & Comment

Yet Another Illegal ACA Tax Regulation

I have previously written about various IRS regulations that contradict the clear language of tax code Section 36B. I recently re-examined the regulations and was only mildly surprised to find another provision that plainly exceeds the IRS’s rulemaking powers. Here, the IRS has simply discarded the statute’s joint return requirement for a segment of taxpayers […]

Notice & Comment

AALS Journal of Legal Education Symposium on Legislation and Regulation in 1L Curriculum

Last week the Journal of Legal Education, which is the official legal pedagogy journal of the Association of American Law Schools (AALS), published a terrific symposium issue on legislation and regulation in the first-year law school curriculum. It’s great to see the issue in print. You can access the full version for free here. The live symposium was […]