In a prior post, I described some issues related to regulatory severability, that is, a court’s decision to strike or not strike an entire regulation project when it finds that only a portion of it violates the law. In this post, I want to explain how principles of regulatory severability could doom some regulations recently proposed […]
In a prior post, I described some issues related to regulatory severability, that is, a court’s decision to strike or not strike an entire regulation project when it finds that only a portion of it violates the law. In this post, I want to explain how principles of regulatory severability could doom some regulations recently proposed […]
Law clerks, of course, vow to keep confidential “any information [they] receive through [their] clerkship that is not part of the public record.” Even so, this announcement should be safe: D.C. Circuit law clerks are terrible at basketball. Each year, the D.C. Circuit clerks play a game of basketball against the Supreme Court clerks. In my […]
What a strange world we administrative lawyers call home. Ours is a land where elephants hide in mouseholes, wolves sometimes wear clothes, and some even say that “Article III judges — like jackals stealing the lion’s kill — expropriate some of the power that Congress has wrested from the unitary Executive.” We talk of “Black […]
When Congress passes an Act, and a court finds a portion of it unconstitutional, questions of “severability” arise. That is, the court will consider whether it should strike the entire law, under the theory that without the constitutionally offensive portion, Congress would not never have passed the Act. I’ve been wondering whether this type of […]
A simmering dispute over the risk corridor program has broken into the presidential campaign, with Senator Rubio crowing that an arcane budget move has “kill[ed] Obamacare” and “saved the American taxpayer $2.5 billion.” On account of that move, health plans are set to receive only pennies on the dollar from the risk corridor program, which […]
WASHINGTON (October 29, 2015) – The ABA Section of Administrative Law and Regulatory Practice (Adlaw Section) announced the official merger of the Section’s blog, Notice and Comment, with the Yale Journal on Regulation (JREG) blog (also called Notice and Comment) at its 2015 Fall Administrative Law Conference. The new blog will combine contributors from both […]
In my prior post, I mused on the potential severability analysis for tax regulations that a court declared invalid. I noted that courts do not perform severability analysis when (for example) invalidating subsection (d) of a particular tax regulation and instead set aside only the particular regulatory language relevant to the taxpayer’s tax liability. My […]
Workplace wellness programs discriminate. That’s what they do. Employees who adhere to a wellness program pay less for their coverage; those who don’t pay more. Wellness programs thus clash with federal rules that generally require employers to treat their employees even-handedly, regardless of health status. The Affordable Care Act makes an exception, however, for wellness-based […]
This week was a quiet one at the D.C. Circuit — just two cases, neither of which involves “admin law.”* The Thanksgiving holiday undoubtedly played a role. Thanksgiving, however, prompts a thought. With all the talk of Black Friday, my mind turned to one of the most important days in the history of administrative law: […]
Dear 2Ls, If you hope to clerk for a federal judge after graduation, pay careful attention. Some judges hire clerks during the first semester of the 2L year—or sometimes earlier. Others begin looking at applications after first semester grades are released and law review boards turn over; based on anecdotal information, this may be the […]
Last week the Michigan Law Review published in its online companion a short essay of mine—entitled Inside Regulatory Interpretation: A Research Note—which responds to Kevin Stack’s seminal article on regulatory interpretation Interpreting Regulations. Like Anne O’Connell’s article I reviewed for Jotwell earlier this month, Professor Stack’s article was chosen by the American Bar Association as […]
Each morning, lawyers everywhere do certain things. We brush our teeth; take a shower; get dressed; check our email and the headlines; have a bite to eat; exchange pleasantries with loved ones, co-workers, or both; and then read the Notice & Comment blog. (Well, at least we all should do these things ….) I followed […]
Pluto is a dog; Goofy is a dog. Pluto scampers about in the buff with only a slobbery femur to chew on; Goofy wears comfortable clothes and manages a moderately expensive restaurant. This, of course, is not a novel observation about “cartoon doghood,” but it does illustrate a principle: not all dogs are created equal. […]
On Friday, October 30, 2015, in the Federal Register, the Merit Systems and Protection Board (MSPB) today issued an interim final rule, to amend its rules of practice and procedure. The interim final rule clarifies that parties have a right to discovery under the MSPB’s existing discovery procedures in compliance proceedings. The MSPB explained that […]