An agency cannot issue, amend, or rescind a legislative rule without first conducting a notice and comment proceeding (N&C) unless it can find an applicable exemption from the N&C procedure. The N&C process has become so lengthy and resource-intensive that agencies are increasingly desperate to find an applicable exception. Moreover, Congress sometimes shares agencies’ frustration […]
With many Democrats already opposing Nancy Pelosi as speaker and many Republicans having already opposed Kevin McCarthy as speaker, whichever party wins the House of Representatives could struggle to get the 218 votes required to win a Speaker of the House election. Seeing an avenue to exchange their votes for reform, the bipartisan Problem Solvers […]
“Like the Internet, the [Global Positioning System (“GPS”)] is an essential element of the global information infrastructure,” and “is now in everything from cell phones and wristwatches to bulldozers, shipping containers, and ATM’s.” GPS Applications, GPS.gov. But, as Justice Brandeis predicted in his famous Olmstead dissent, technological advances augur challenges to individual privacy. Olmstead v. […]
The D.C. Circuit — hurrah! — did not decide any cases this week. Even if it had, no doubt the big news would be Judge Kavanaugh’s* upcoming confirmation hearings. That is the context for this week’s post. There is something about Judge Kavanaugh’s record that I don’t think has received enough attention. He is a […]
Between October and December 2003 U.S. military personnel engaged in “sadistic, blatant, and wanton criminal abuse” of Iraqi detainees at Abu Ghraib prison. See, Seymour M. Hersh, Torture at Abu Ghraid, THE NEW YORKER (May 10, 2004). Photographs and videos recorded the abuse; a few were published when the abuse was first reported. See, id. […]
After Congress passed the Tax Cuts and Jobs Act, several states adopted a charitable contribution strategy to help their residents avoid the new Section 164 deduction limits for state and local tax payments. Under the strategy, taxpayers would make donations to state-controlled funds and receive state tax credits for those donations. Taxpayers would then use […]
Here is a blog post I wish I could take back: “Five Years After the Death of the Clerkship Plan.” My post, from February of this year, concerned a (then) long-time feature of the D.C. Circuit’s homepage: The backstory is that in 2013, the D.C. Circuit officially withdrew from the “Law Clerk Hiring Plan,” which […]
A key concern of market-center economies like that in existence in the United States today is that public companies will under-disclose information about their prospects. Since the 1930s, the main regulatory response to this concern has come in the form of the massive mandatory-disclosure regime that sits at the foundation of modern securities law. But […]
As administrative law scholars have long noted, the structure of administrative law—and administrative agencies—has a powerful status quo bias. Ossification slows a deregulatory process, and burrowing may exacerbate deregulation’s lethargic pace. In other words, deregulating is difficult. But regulation also affects the structure of regulated firms. New regulation causes observable changes within firms. And in […]
One of the most intriguing, unanswered questions about this Administration’s approach to regulatory policy is whether they’ll pull independent agencies in for some form of review by the Office of Information and Regulatory Affairs (OIRA). Although this issue has been kicked around for decades, President Trump’s appointment of Neomi Rao to the post of OIRA […]
Despite being 112 years old, the Antiquities Act remains a significant source of controversy and conflict. For supporters, its expansive interpretation provides a necessary tool to protect the environment and avoid the congressional gridlock that leaves sensitive federal lands vulnerable. Opponents of the way the law is currently implemented respond that its loose wording has […]
This is the final post in my four-part series discussing Secretary of Commerce Wilbur Ross’ decision to add a citizenship question to the 2020 decennial census form. The Secretary justified his decision by referencing the Department of Justice’s need for citizenship information in certain Voting Rights Act section 2 litigation. Plaintiffs in the New York […]
Does the government have a legal right to tell the banks what they can and cannot do with their own money? The Volcker Rule tries to do just that: banks are not allowed to engage in proprietary trading with their own capital. In this blog, we demonstrate an important justification for the Volcker Rule. Banks […]
In the summer of 2016, I wrote in Fortune that then-candidate Trump was “the single-biggest challenge to [Fed independence] in recent memory,” and that his challenge was transparent: “this wolf comes as a wolf,” I wrote, invoking Justice Scalia. The reason is simple: Trump cannot abide separate centers of power, and he relishes tearing down […]
Here is the July 2018 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. With the start of the new school year (and some other personal and professional obligations this month), I haven’t been able to give these papers […]