There are apparently swirling rumors that the Trump people, and Republican senators, may agree to enact the Separation of Powers Restoration Act of 2016. The Act, having passed the House, is now before the Senate Judiciary Committee. It instructs courts, inter alia, to “decide de novo all relevant questions of law, including the interpretation of […]
I write about law for a living. Over the past five years or so, I’ve committed my time and my pen to saying what the law does and doesn’t allow the president to do, even when that’s made me unpopular with my friends. I’ve pored over statutes, parsed Federal Register notices, dredged the case law, […]
Stepping away from research interests for a post, I thought I’d pose a teaching-related question to the bloggers and readers of Notice and Comment: for which courses that you (or others you know) teach is Administrative Law a mandatory prerequisite? After two weekends spent at conferences where I had a chance to catch up with […]
The ABA Section of Administrative Law and Regulatory Practice has just released its 2016 Report to the President-Elect on Improving the Administrative Process. In keeping with its practice in previous election years, the Section has delivered the report to the transition teams of the two major party candidates for President. I had the good fortune of working […]
Today is an important anniversary: 25 years ago, on November 5, 1991, Justice Clarence Thomas asked his first question as a member of the U.S. Supreme Court. Earlier this week, I posted an essay I co-authored with RonNell Andersen Jones that collects and analyzes his questions. Today, I’ll use D.C. Circuit Review – Reviewed to […]
Here is the October 2016 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. And it’s a really terrific set of papers. Law in the Anthropocene Epoch by Eric Biber [CJW Note: I’m a big fan of Biber’s coauthored work […]
Ashish Jha has a new post on antitrust problems in the health-care industry: A robust literature on the benefits of competition in the health care marketplace shows that when health care markets are competitive, prices tend to be lower, quality tends to be higher, and people have more choices for care. Competition is a remarkably powerful tool […]
Earlier this week, the NYTimes published an article on a tax strategy apparently used by Donald Trump in 1991 to reduce his taxable income. The ensuing commentary has focused heavily on the mechanics of the tax strategy, and has emphasized that though there was apparently “substantial authority” for the tax positions claimed by Trump, those […]
Here is a bit of trivia: Did you know that Justice Clarence Thomas once spent nearly 10 minutes asking questions during a single session of oral argument? It’s true–in NASA v. FLRA, argued in 1999. The case concerned the role of agency inspector generals. Thomas, of course, headed a federal agency, and so knows how […]
Last week, the Yale Daily News Publishing Company, Incorporated (i.e., the Yale Daily News (YDN)) caused a minor stir when it endorsed Hillary Clinton for President. The YDN is a corporation that claims tax-exempt status under Section 501(c)(3), and engaging in political activity is inconsistent with that statute’s requirements. Specifically, if a corporation wants to […]
Almost a year ago, I wrote a post challenging the idea that the Chief Justice does not assign important opinions to Justice Sotomayor. This week, my analysis is similar — but this time it involves Justice Thomas. As I explained last year, here is an important principle when it comes to understanding the Supreme Court: […]
In the frequently asked questions chapter of the Federal Register Document Drafting Handbook, the Office of the Federal Register provides (in Section 18.7) the following prohibition: It is not appropriate to quote laws and rules in the text of Federal Register documents. Laws may be paraphrased and rules may be cross-referenced if they meet the requirements in […]
I am a big fan of Kathryn Kovacs‘s important work on the Administrative Procedure Act (APA) and administrative common law (here, here, and here). So I was so excited when the editors of my institution’s main journal, the Ohio State Law Journal, informed me that they would be publishing Professor Kovacs’s latest article, Scalia’s Bargain. […]
[10/31 Update: Apparently we had ninety people on the live teleforum about our study. The Federalist Society has kindly turned the teleforum into a podcast, which is available here. The paper will not be published until next summer, so comments are particularly welcome.] The Federalist Society’s Administrative Law and Regulation Practice Group has graciously organized […]
In general, private food safety standards might be regarded as beneficial for both producers and consumers. If Walmart, for example, imposes a requirement on its supplier farms to use chemical fertilizers instead of manure, an important safety risk is minimized (although with other perhaps less desirable costs imposed on farmers and their environment), consumers’ food […]