Notice & Comment

Notice & Comment

Notice & Comment

A puzzle about standing (and the Affordable Care Act).

When you bring a federal lawsuit, you have to show that you’ve suffered an injury that the defendant has caused and that, if you prevail, the court can enter relief that will redress that injury. In assessing the sufficiency of your claim for standing, the court—in principle, at least—is supposed to assume that you’ll prevail […]

Notice & Comment

TPP. .P

Sometimes the ship of state can be turned abruptly, but sometimes it can’t.  Even though agencies possess great budgetary flexibility, and reallocation of appropriated funds is generally an unreviewable exercise of discretion, see Lincoln v. Vigil, 508 U.S. 182 (1993), a new administration encounter constraints in discontinuing the funding of multiple-year grants made by a […]

Notice & Comment

Hatch-Waxman and Defective Generic Drug Labels: The Disjunction Between Federal Drug Safety Law and State Warning Defect Law (Part II)

In an earlier post I outlined a regulatory anomaly regarding liability for defective drug labels.  Hatch-Waxman expedited entry of generics medications into the market, by relieving generic-brand manufacturers of the need to conduct further testing.  Concomitantly, the statute placed control of the contents of the drug label in the hands of the original recipient of […]

Notice & Comment

Over at Truth on the Market: G Hurwitz on Chevron and the Politicization of Law (or, Chevron Step Three)

Over at Truth on the Market, Gus Hurwitz thoughtfully enters the debate between Philip Hamburger and me (here and here) regarding the role of Chevron deference in constraining partisanship in judicial decisionmaking. This debate builds on findings from Administrative Law’s Political Dynamics, my latest paper with Kent Barnett and Christina Boyd from our Chevron in the circuit courts dataset. […]

Notice & Comment

PrawfsBlawg Supreme Court End-of-Term Coverage

Over at PrawfsBlawg this month, I’ll be contributing to their coverage of the end of the Term at the Supreme Court. They have assembled a great group of law professors to guest-blog for the month, so definitely bookmark the blog and check it out this month. Here is my first contribution to the SCOTUS end-of-term […]

Notice & Comment

69th Plenary Agenda (ACUS Update)

The Administrative Conference will host its 69th Plenary Session on June 14th and 15th, 2018.  If you have attended previous plenary sessions and are planning to attend this one, please note the new location!  For the first time, the Assembly will meet in the Jacob Burns Moot Court Room at George Washington University Law School.  The agenda for the meeting […]

Notice & Comment

Hatch-Waxman and Defective Generic Drug Labels: The Disjunction Between Federal Drug Safety Law and State Warning Defect Law (Part I)

Consider the following hypothetical.  A drug company develops and patents a pharmaceutical to sell under brand-name.  It secures FDA approval and enjoys its patent monopoly for many years.  But after that patent monopoly expires, generic brand-makers flood into the market and undercut the brand-name’s price.  Pharmacists substitute the generic for the brand name.  The label […]

Notice & Comment

Significant Rollback of Dodd-Frank Signed Into Law

On May 24, 2018, President Trump signed into law “Economic Growth, Regulatory Relief, and Consumer Protection Act,” to date the most significant rollback of the financial regulatory framework set up by the Dodd-Frank Wall Street Reform and Consumer Protection Act (enacted in 2010). The bill had previously passed the Senate in March and the House […]

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 […]