Notice & Comment

Notice & Comment

Notice & Comment

Why is Judicial Biography So Hard To Write?

I don’t envy the reading load that William Domnarski undertook on his way to writing his biography of Richard Posner. By his account in an interview, he read all of Posner’s judicial opinions, numbering some 3,000. And then he read “most of them for the second time,” and “some for the third time.” He then […]

Notice & Comment

State Preemption: Arizona vs. Local Control

This blog tends to focus on federal regulation or state regulation, but local regulation is also particularly important in some areas of law – particularly public health law, my area of focus. Recently, there have been coordinated efforts to limit local regulation through the use of state-level preemption.  Recent examples from my home state of […]

Notice & Comment

(Upcoming Symposium) Reflections on Seminole Rock: The Past, Present, and Future of Deference to Regulatory Interpretations

Everyone who has been following administrative law in recent years knows that Seminole Rock deference is controversial. Because of Seminole Rock deference (also known as Auer deference), courts—generally—defer to an agency’s interpretation of its own ambiguous regulations. (Put another way, “Auer deference is Chevron deference applied to regulations rather than statutes.”) This sort of deference […]

Notice & Comment

Founders Meet Brand X, by David Feder

[Note from Daniel Hemel: Guest poster David Feder, currently an associate at Munger, Tolles & Olson in Los Angeles and formerly a law clerk to Judge Neil Gorsuch on the Tenth Circuit, has written a thoughtful response to my post last week criticizing Judge Gorsuch’s opinion in Gutierrez-Brizuela v. Lynch. This post reflects the views only […]

Notice & Comment

D.C. Circuit Review – Reviewed: Wilco, Trunk Monkey, ThunderCats, Cass Sunstein, Ghostbusters, Katy Perry, Judge Randolph, and Qualified Immunity

Reader, no doubt you have come to appreciate just how much nicer the new Notice & Comment looks compared to the old site. (Indeed, the old Notice & Comment looked a lot like this or even this.) To be sure, the transition has not been seamless; I’ve noticed a hiccup now and then. But on […]

Notice & Comment

Federal Agencies as Statutory Drafters (AdLaw Bridge Series)

I blogged about this project earlier in the year, but I’m excited to report that I finally have a full draft of the article, Legislating in the Shadows, which is forthcoming in the University of Pennsylvania Law Review.  This article documents a previously under-explored yet widespread practice—how agencies confidentially assist Congress in drafting statutes—and then explores […]

Notice & Comment

The Tenth Circuit vs. Brand X

In the 2005 Brand X decision, the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet […]

Notice & Comment

Deference Doctrines Matter

Over at the Library of Law and Liberty, I had a post yesterday, entitled Do Judicial Deference Doctrines Actually Matter?, on Kent Barnett and my new article Chevron in the Circuit Courts, which is forthcoming in the Michigan Law Review. In that post, I briefly recap the current debate about whether to get rid of, or […]

Notice & Comment

A Sleeper Auer Case

Auer deference — the deference an agency receives when interpreting its own regulations — is one of the most powerful tools for the government in administrative law. But the doctrine has faced increasing criticism. Opponents have argued that the doctrine enables agencies to circumvent procedural safeguards by promulgating vague rules through notice and comment and […]

Notice & Comment

When Judges Get Indicted

Earlier this year, former U.S. Tax Court Judge Diane Kroupa was indicted for conspiracy to commit tax evasion and obstruction of an IRS audit.  During her time on the court, Kroupa authored some significant opinions, including BNY Mellon v. Commissioner, which held that the taxpayer could not properly claim foreign tax credits generated through a […]