In Business Roundtable v. SEC, 647 F.3d 1144 (D.C. Cir. 2011), the D.C. Circuit held that the SEC must justify all its regulations promulgated under the National Securities Market Improvement Act through cost benefit analysis. Cost-benefit analysis makes sense for many SEC regulations because they focus on easily quantified matters. But they make less sense […]
Next week I’m taking my newest project—Legislating in the Shadows—on the road with a law faculty workshop at UNLV on Monday (1/25), and another law faculty workshop at the University of Utah on Wednesday (1/27).* Thanks in advance to the law faculties at UNLV and Utah for reading the early draft of the paper and […]
In my last post, I situated FDA’s international agreements in the literature on “global administrative law” and suggested that the field’s leaders take too narrow a view of what regulators do in the process of “making” global administrative law. Their regulatory mission is often much broader than the product or sector so-described. FDA’s international agreements […]
Is the Obama administration’s deferred action program for the parents of citizens and legal permanent residents (DAPA) a legislative rule? The Fifth Circuit says it probably is, the administration swears it isn’t. The fight matters because, if DAPA is a legislative rule, it should have gone through notice and comment. With its cert grant in […]
Those of you who look for interesting news headlines buried in your Friday news feeds will have found quite an interesting little nugget on the front end of this MLK weekend. The Obama administration made good on a State of the Union hint and announced that it is initiating a moratorium on new coal leases […]
Over the weekend I mused about how “the Court does not often ‘call for the views of Texas’ or ‘call for the views of California,’ even though those sophisticated litigants may also have something to say about a petition’s certworthiness.” Since then, a reader has helpfully pointed one fairly recent example of a CVTex: Rhine […]
When it comes to appellate litigation, the color of a brief matters a lot. Judges—busy people—are particular about it because standardization helps. After all, a judge can quickly sort out the appellant’s brief from the appellee’s brief from the appendix from the amicus briefs. The importance of a color code, moreover, is especially important at […]
The Freedom of Information Act (FOIA) is in the news this week, with a New York Times piece that highlights Margaret Kwoka‘s terrific forthcoming Duke Law Journal article FOIA, Inc.— an article Ibriefly blogged about last week. Now the House Oversight and Government Reform Committee, chaired by Representative Jason Chaffetz (R-UT), released a staff report on its investigation […]
Medical privacy matters. But it’s not the only thing that matters, and people may not value it as much as they say they do. Here’s an analogy. If I asked you whether you think private companies should monitor your movements, you’d probably say no. You might even feel strongly about it, and understandably so. It’s […]
As I noted back in October, the Seventh Circuit decided a case Bible v. United States Aid Funds, Inc. , which Judge Easterbrook claimed was a suitable vehicle for the Supreme Court to reconsider Auer/Seminole Rock deference — the doctrine that instructs courts to defer to an agency’s interpretation of its own regulation unless the interpretation […]
Dear 2Ls, A couple of months ago I wrote a letter explaining that “if you hope to clerk for a federal judge after graduation,” you should be prepared to apply no later than “after first semester grades are released and law review boards turn over.” True, not all clerkship slots will be filled over the […]
As I previewed here, the Association of American Law Schools (AALS) held its annual meeting in New York City last week, and there were a number of terrific panels and events on administrative law and regulation. I loved the AALS AdLaw Section’s panel on the regulatory/compliance curriculum as well as its annual New Voices Program—where […]
Here is the December 2015 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. Here’s the top ten: 1. Who Can Be President of the United States?: Candidate Hillary Clinton and the Problem of Statutory Qualifications by Seth Barrett […]
This isn’t a novel insight but it bears repeating: no two judges are the same. They grew up in different families; had different careers; have different interests; and operate with different intuitions. Yet judges in the United States—at least as a rule—wear the same uniform: a plain black robe.* Recently, however, Noah Feldman—one of the […]
It is bedrock in a democracy, of course, that the public must be able to see the text of binding law. We take for granted that we can readily view federal statutes and regulations in government publications that are freely available online and in the Federal Depository Library System. It might surprise some to learn, […]