Last Friday, the D.C. Circuit rejected West Virginia’s challenge to the so-called “like it, keep it” fix, which told the states that they could temporarily decline to enforce the ACA’s new insurance rules against their insurers. (Background here.) I’m sympathetic to West Virginia’s underlying legal claim. It was unlawful, in my judgment, for the Obama […]
June has come to an end, the Justices have dispersed, and once more, in the words of a young John Roberts, “the Constitution is safe for the summer.” Every year, the Supreme Court rushes to finish up its work before the Fourth of July. And then the Justices are off to Austria, Malta, Arkansas, Italy, […]
On June 16, 2016, Justice Clarence Thomas wrote for a unanimous Supreme Court that so-called “implied certification” theories supporting False Claims Act suits were permissible under the statute but ultimately sided with the government contractor because “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that […]
Last week, the Department of Justice asked the Court of Federal Claims to dismiss a massive class-action lawsuit in which co-ops have asked for money owed to them under the risk corridor program. To my knowledge, the government’s motion is its first substantive filing in any of the risk corridor cases. The litigation was precipitated […]
My co-blogger Andy Grewal asked in a post on Tuesday: “Why doesn’t the IRS comply with the Congressional Review Act?” My first thought on reading Andy’s post was: “Yeah, why doesn’t it?” My second thought was: “Maybe it does.” The Congressional Review Act, passed in 1996, allows the House and Senate to block certain federal […]
Dan Ho and Becky Elias have a wonderful article in the Boston Review about their new research on the benefits of peer review in restaurant inspections. Beginning in 2014, we designed a randomized, controlled trial to test the effectiveness of peer review with the food safety staff of King County, where Seattle is located. Half […]
Under the Congressional Review Act, the effective date of so-called “major” regulations must be delayed to give Congress a chance to veto them via a joint resolution. Major regulations are generally those that would have a $100+ million effect on the economy. See 5 USC 804(2)(A). See also 5 USC 804(2)(B) & (C) (providing other […]
As Will Baude reminds us, courts often do important things that don’t receive enough attention. Baude dubbed this dynamic the “shadow docket” in the context of the Supreme Court, but there is no reason why his insight is limited to the Justices. Courts everywhere make decisions that are significant but yet don’t end up in […]
Justice Kennedy’s opinion for the majority in Encino Motorcars, LLC v. Navarro is significant for a number of reasons. For one, it marks the first time that the Supreme Court has used a Perma.cc link in an opinion—a victory for the Harvard Law School Library and its Perma.cc partners in their fight against link rot […]
There has been much excitement on the playground of administrative law about the recent decision in Encino Motorcars LLC v. Navarro, in which the Court refused to defer to a Labor Department regulation under the Fair Labor Standards Act. Perhaps because of swirling background debates over Chevron, arbitrariness review, “libertarian administrative law,” and the robustness […]
Thanks to Chris Walker for inviting me to join the conversation about last week’s net neutrality decision. Previous posts by Aaron Nielson and Daniel Deacon did an excellent job highlighting one of the decision’s major themes, the dialogue between the majority and the partial dissent regarding the proper amount of scrutiny to apply to arbitrary […]
The administrative law professoriate is abuzz about the Supreme Court’s recent opinion in Encino Motorcars, LLC v. Naravrro . The 6-2 majority vacated and remanded the 9th Circuit’s rejection of a challenge to a Department of Labor regulation that would have entitled certain car dealership employees to overtime pay. Legal academics and administrative lawyers presently […]
Today the Supreme Court decided Cuozzo Speed Technologies v. Lee, a case concerning the scope of inter partes review by the Patent Trial and Appeal Board—a review procedure created by the Leahy-Smith America Invents Act of 2012 (AIA). The Court ruled in favor of the Patent and Trademark Office (PTO) on two separate issues: (1) that […]
I wanted to follow up on Aaron Nielson’s great post about the D.C. Circuit’s long-awaited net neutrality opinion with a couple of related thoughts. (I saw, as I was writing this post, that Professor Daniel Lyons also has a post up on the Volokh Conspiracy touching on similar points.) For one, it’s interesting how Judge […]
Yesterday, the Supreme Court decided a False Claims Act suit that has enormous implications for Medicare and Medicaid fraud. The allegations in Universal Health Services v. United States ex rel. Escobar are startling. Yarushka Rivera, a young Medicaid beneficiary, died of an adverse reaction to medication that she’d received to treat her bipolar disorder. After […]