Notice & Comment

Notice & Comment

Notice & Comment

New ACUS Project on Aggregate Agency Adjudication

The Administrative Conference of the United States (ACUS) just announced a new project they’ve commissioned, entitled Aggregate Agency Adjudication. The consultants on this project are Adam Zimmerman and Michael Sant’Ambrogio, and it builds on their terrific article The Agency Class Action, 112 Colum. L. Rev. 1992 (2012). Here’s a description of the project, from the ACUS project […]

Notice & Comment

King v. Burwell: A Potential Gift to Tax Lawyers?

If there are any tax attorneys in the courtroom today, I think they probably wrote down what you just said.” —Justice Alito, referring to Solicitor General Verrilli’s comments on the legislative grace canon. *              *               * In a few weeks, we can expect […]

Notice & Comment

The SEC’s Inferiority Complex, by Kent Barnett

CJW Note: In both academic and practitioner adlaw circles, there’s been chatter for a while about the constitutionality of the SEC using administrative law judges (ALJs) in its enforcement actions. On Monday a federal judge found such practice to likely be unconstitutional. One of my coauthors, Kent Barnett (UGa Law), has written extensively on ALJs (he’s quoted in the […]

Notice & Comment

What Five Years of Dodd-Frank Have Left Undone, by Philip Wallach

The Dodd-Frank Wall Street Reform and Consumer Protection Act is coming up on its fifth birthday next month. Seldom has a law’s meaning been so little determined five years out from passage—especially a law running hundreds of pages. Dodd-Frank seems to frustrate everyone: Wall Street finds it massively burdensome and parts of it profoundly wrong-headed; […]

Notice & Comment

Response to Walker on Chevron Deference and Mellouli v. Lynch, by Patrick Glen

CJW Note: Last week I posted some preliminary reactions to the Supreme Court’s immigration adjudication decision in Mellouli v. Lynch. Patrick Glen, senior litigation counsel with the Justice Department’s Office of Immigration Litigation, sent me the following response, which he graciously has allowed me to repost here. The standard disclaimer applies: The views and opinions expressed […]

Notice & Comment

When We Fought the Law, and the Law…Went Quietly, by Philip Wallach

I am afraid that my defense of the law’s importance as a constraint in the case of Lehman Brothers, as against Peter’s charge that the Fed’s choice in that matter should be understood solely as a matter of internal institutional discretion, will give readers the misimpression that To the Edge is filled with examples of […]

Notice & Comment

Degrading the Judicial Power

In a characteristically thoughtful post, Professor Richard Re examines whether the transfer of an increasing number of cases to Article I legislative courts could pose a threat to the Article III judicial power exercised by federal district courts. He writes in the context of Wellness International Network v. Sharif, which sanctioned some exercise of the […]

Notice & Comment

Chevron as a Canon, Not A Precedent

Last week, the DC Circuit issued a potentially important decision in Validus Reinsurance, Ltd. v. United States addressing the potential interplay of the presumption against extraterritoriality—a canon of statutory construction—and Chevron deference. Andy Grewal has a great post that summarizes the case and speculates that “Chevron deference might just be an interpretive canon which need […]

Notice & Comment

Lehman the Lemon, or Lehman the Forsaken?, by Philip Wallach

Peter Conti-Brown says that the Fed’s official explanation for its failure to rescue Lehman Brothers, which blames the Fed’s legal limitations, is “pure spin,” and that “the Fed reached for legal cover when the Lehman bankruptcy turned out very differently than they had hoped. It was a political decision, not a legal one.” Under his […]

Notice & Comment

Too Legit to Fit (Into Anything Sensible)?, by Philip Wallach

In this post, I will articulate my conception of legitimacy as distinct from legality, and explain what lawyers and policymakers have to gain by understanding the difference. I have to beg readers’ forgiveness for being rather philosophical and long-winded here, and I promise to move on to more exciting and concrete action in subsequent posts. […]

Notice & Comment

On Timing and King

Since I’ve received a number of questions recently about the timing of King v. Burwell and its aftermath, I thought it was worth addressing them all in one place. When will we get a decision? The Court is likely to release its opinion in the last week of June. A decision could come sooner, but […]