This month, two judges made a strong bid—perhaps the strongest of the century—to limit when agencies may make law through adjudication rather than rulemaking. In Brown-Forman Corp. v. NLRB, the Sixth Circuit declined to enforce a bargaining order that relied on Cemex Construction Materials Pacific, LLC, which announced a new standard for remedial bargaining orders. […]
Notice-and-comment rulemaking is the core mechanism through which the public can shape regulation. As such, courts ask whether agencies have responded adequately to significant comments and scholars often examine whether final rules differ from proposals that precede them—but those approaches typically measure change at the level of entire regulations or, more broadly, documents. That is […]
For more than thirty years, Republicans in all three branches of the national government worked to overturn Chevron and eliminate judicial deference to administrative agencies. As former White House counsel Don McGahn explained, their objective was “to corral the runaway bureaucracy to get judges in place who were actually going to read the law as […]
We promised you that this symposium would be for AI skeptics, AI believers, and everyone in between, and we hope that you will agree that we delivered.
The D.C. Circuit didn’t issue any opinions last week, so this recap is brief. The Court did issue two orders of interest, however. The first order came in Miot v. Trump, No. 26-5050, the government’s appeal of the district court order staying the termination of Temporary Protected Status (TPS) for Haitian nationals under 5 U.S.C. […]
Prediction Markets allow you to “trade on anything” but does “anything” really mean anything? There is certainly some truth to their claim. Extraterrestrial enthusiasts can purchase a contract on Kalshi that will pay out if the government confirms aliens exist. Polymarket caters to the more spiritual among us, offering trades on whether Jesus Christ will […]
As noted on this blog, last month the D.C. Circuit issued an opinion in Centro de Trabajadores Unidos v. Bessent, which has gotten some attention for describing Loper Bright as “upend[ing] th[e] foundation” for challenges to changes in agency statutory interpretations. But a close examination of the point that the D.C. Circuit made reveals that […]
Today’s Ad Law Reading Room entry is “Vacatur Within the Appellate Model of Judicial Review,” by Emily Bremer, which is forthcoming in the Yale Law Journal. Here is the abstract: This Article situates vacatur within a holistic account of the appellate model of judicial review that Congress codified in the Administrative Procedure Act (APA). Revisionist […]
This week, the Supreme Court will hear oral arguments in Montgomery v. Caribe Transport, a major regulatory case. A quick way to estimate any case’s importance is to look at which groups are interested enough to submit amicus curiae (“friend of the court”) briefs. Based on this metric, Caribe Transport is a blockbuster, featuring amicus […]
In Centro de Trabajadores Unidos, et al. v. Scott Bessent, in his capacity as Secretary of the Treasury, et al., No. 25-5181, ICE asked the IRS for addresses to assist in nontax criminal investigations. Plaintiffs sought to block the IRS from providing the addresses but lost in the district court. The D.C. Circuit affirmed the […]
Here is the list of works included in the February 2026 Comparative Administrative Law Scholarship Corner, which is curated by Eduardo Jordão (FGV Law School, Rio de Janeiro), with the assistance of Eduarda Onzi. The Scholarship Corner is a resource provided through the Comparative Administrative Law listserv. For more information about this terrific resource, check out my first […]
Last month, the Administrative Conference of the United States (ACUS) held its 84th Plenary Session at which the Assembly adopted four new recommendations: Recommendation 2026-1, Obtaining Government Records for Use in Agency Proceedings, provides agencies with best practices for making government records available for use in agency proceedings in order to promote the fairness, accuracy, consistency, timeliness, […]
The Supreme Court’s opinion in Learning Resources, Inc. v. Trump is sure to garner countless news reports, media commentaries, and academic responses. Much of this attention will focus on Chief Justice Roberts’s majority opinion holding that President Trump’s attempts to impose sweeping import duties were not statutorily authorized by the International Emergency Economic Powers Act […]
Since the Supreme Court announced the major questions doctrine in 2022, the doctrine has generated extensive confusion in lower courts and academic commentary. As colleagues and I explained in an amicus brief in the Supreme Court’s tariffs litigation, lower courts have expressed considerable confusion over both when the major questions doctrine applies and how the […]
Here is the January 2026 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. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You can […]