I have adapted this post from a forthcoming law review article that will appear in the Administrative Law Review this September entitled When Text and Policy Conflict: Internal Whistleblowing Under the Shadow of Dodd-Frank. You can view the article here. Background After the economic meltdown following the 2008 financial crisis, Congress enacted the Dodd-Frank Wall […]
We love mysteries here at Notice & Comment — especially mysteries about the D.C. Circuit. And this week we have a humdinger of a mystery. As co-blogger Chris Walker highlighted a few days ago, Abbe Gluck and Richard Posner have just published Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal […]
President Trump has recently complained that Senate Democrats have prevented his nominees from getting confirmed. Even though the Senate eliminated the 60-vote threshold to end a filibuster on a nominee, the Senate still requires 30 hours of debate before voting on the nominee. While Republicans have been willing to devote 30 hours of floor time for higher-level […]
From the New York Times: Cass Sunstein, the Harvard law professor known for bringing behavioral science to bear on public policy (not to mention for writing a best-seller about “Star Wars”), has won Norway’s Holberg Prize, which is awarded annually to a scholar who has made outstanding contributions to research in the arts, humanities, the […]
Last month I participated in a fascinating symposium hosted by the Center for Compliance Studies at Loyola University Chicago School of Law. The topic was “What is the Role of a Regulation if it is Not Enforced?” As background, in 2017 I studied waivers and exemptions for the Administrative Conference of the United States. That […]
Since Attorney General Sessions delivered his speech last week at the Federalist Society’s National Student Convention, there has been a lot of talk about nationwide injunctions—injunctions that prohibit the government from enforcing a law against anyone, as opposed to only against a particular plaintiff. While many people have talked about granting these injunctions, one thing that I […]
Wow, this month’s SSRN reading list is full of some of my favorite administrative law/public law scholars, including Bulman-Pozen, Heise, Lawson, Metzger, Michaels, Pozen, Sharkey, Stack, and Sunstein! And the papers are fascinating. Here is the February 2018 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law […]
I was so excited to see Abbe Gluck’s latest article (with Richard Posner)—Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals—hit the Harvard Law Review press over the weekend. Gluck’s empirical and theoretical work on legislation and statutory interpretation is always a must-read, and this article is no […]
The Freedom of Information Act (“FOIA”) makes “agency records” available to the public upon request, but leaves the term “agency record” undefined. In Forsham v. Harris, 445 U.S. 169 (1980), the Supreme Court ruled that FOIA did not reach documents created and held by government contractors. Later, in U.S. Dep’t of Justice v. Tax Analysts, […]
Kent Barnett and I recruited political scientist Christina Boyd as a coauthor to mine our Chevron in the circuit courts dataset in a more sophisticated manner. We just posted to SSRN a draft of our latest article from this dataset—Administrative Law’s Political Dynamics—which is forthcoming in the Vanderbilt Law Review. I’ll be blogging more about this […]
Chevron deference, which requires courts to defer to reasonable agency interpretations of statutes that the agency administers, is a central doctrine of administrative law. Despite its importance, Chevron rests on uneasy ground. Critics have raised various legal objections to the doctrine. One is that requiring courts to defer to agency interpretations of statutes violates the […]
I am honored to have the chance to review Jon Michaels’s engaging, brilliantly written, and insightful work. Constitutional Coup is a very enjoyable read, chock-full of creative word pictures like Michaels’s description of the “torch and pitchfork crowd” out to get the “Nanny State.” As Jeff Pojanowski and others have observed, the book is thought-provoking […]
Jon Michaels’ new book is a masterful blend of important and fascinating subjects, including the constitutional character of administrative law, superstatute theory, privatization, and procedure. It’s a fun read, too, and a must for anyone interested in a fresh perspective on the perils of privatization! In this post, however, I’m going to focus on some discrete details of […]
Credit where credit is due: the Trump administration announced yesterday that it won’t look the other way if Idaho flouts the Affordable Care Act. The ACA “remains the law and we have a duty to enforce and uphold the law,” CMS administrator Seema Verma explained in a letter to Idaho’s governor and its insurance director. Maybe it’s a […]
The D.C. Circuit did a rare thing this week — in fact, it did it twice. It revisited opinions that the Court had already issued. In Detroit International Bridge v. Government of Canada, the Court “reissued” an opinion from several months ago by making a few minor changes. And in American Petroleum Institute v. EPA, […]