Notice & Comment

Notice & Comment

Notice & Comment

A Year in Review: ALR’s Podcast, “A Hard Look,” by Host Sarah Knarzer

A Hard Look, a podcast by the Administrative Law Review (ALR), covers recent events in administrative law, regulatory policy, and the critiques and praise of various regulations and their efficacy. When coronavirus forced most universities to adapt to a virtual setting, A Hard Look quickly prepared to plan, record, and edit the second season of […]

Notice & Comment

Facile Formalism: Counting the Ways the Court’s Removal Jurisprudence Has Failed, by Jodi L. Short

Conservative legal thought has always been attracted to formalisms, and there is nothing inherently wrong with that. Formalism can be a useful and appropriate tool. Formalism can have a logic and even an elegance to it, as in Chief Justice Burger’s insistence in Chadha on fidelity to the constitution’s “finely wrought and exhaustively considered procedures” […]

Notice & Comment

Administrative Law SSRN Reading List, November 2020 Edition

Here is the November 2020 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. Hayekian Behavioral Economics by Cass R. Sunstein Textualism and the Duck-Rabbit Illusion by Cass R. Sunstein Unrules by Cary Coglianese, Gabriel Scheffler & Daniel Walters […]

Notice & Comment

Ninth Circuit Review-Reviewed: Is CA9’s En Banc Process Driving Disagreement?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of arguably “the second most important court in the land.” Today’s post marks the second anniversary of this series. Let’s get straight to business. CA9’s En Banc Process Is Broken . . .  A major purpose of en banc proceedings is to bring uniformity to appellate law. It is somewhat ironic, therefore, that the Ninth […]

Notice & Comment

Attorney General Referral in Democratic Administrations, by Patrick Glen

Barring a sweep of the Georgia Senate runoff elections, the Biden Administration will have to work with a divided Congress for at least two years. That reality makes it unlikely that the incoming administration can press an immigration policy agenda through legislative means. Rather, as with the Obama Administration before it, the Biden Administration will […]

Notice & Comment

FCC Memo Reinforces Commitment to Economic Analysis, by Jerry Ellig

Shortly before Thanksgiving, the Federal Communications Commission (FCC) released a joint memo from its Office of Economics and Analytics (OEA) and Office of General Counsel (OGC) titled “Legal Framework and Considerations for Regulatory Impact Analysis.” The memo marks a significant milestone in the FCC’s ongoing initiative to encourage objective economic analysis and ensure that decision-makers […]

Notice & Comment

Selecting District Judges in the 116th Senate Lame Duck Session, by Carl Tobias

The Senate promptly began a lame duck session after voters had clearly named Joe Biden as President yet seemingly returned a GOP upper chamber majority. These elections followed a number of years in which President Donald Trump and the Republican chamber majority have appointed three extremely conservative, able, young Supreme Court Justices, fifty-three similar appellate […]

Notice & Comment

CIC Services and Justice Breyer’s Broken Escape Hatch

This week, the Supreme Court heard oral arguments in CIC Services v. IRS. That case involves a challenge to Notice 2016-66. Under that notice, material advisors to some reportable transactions face substantial reporting requirements. A failure to satisfy those reporting requirements subjects the taxpayer to potentially severe penalties. See 26 U.S.C. §§ 6111(a) and 6707A(a)-(b). […]

Notice & Comment

Judicial Modesty and the Administrative State, by Todd Phillips

Administrative law is full of court-made doctrines created to ensure the proper functioning of the administrative state but which are frequently invoked by political actors as they use the courts to accomplish their legislative and regulatory policy goals that they failed to enact—or prevent being enacted. Courts should wield their power modestly by respecting Congress’s […]

Notice & Comment

HHS Proposes to Sunset Regulations It Fails to Review Retrospectively, by William Funk

Every President since Jimmy Carter has called on agencies to make retrospective reviews of their regulations. President Clinton’s Executive Order 12866 required agencies to create a program of periodic review of existing significant regulations. More recently both Presidents Obama in E.O. 13563 and Trump in E.O. 13771 likewise have required agencies to engage in retrospective […]