[Note from Daniel Hemel: Guest poster David Feder, currently an associate at Munger, Tolles & Olson in Los Angeles and formerly a law clerk to Judge Neil Gorsuch on the Tenth Circuit, has written a thoughtful response to my post last week criticizing Judge Gorsuch’s opinion in Gutierrez-Brizuela v. Lynch. This post reflects the views only […]
This post will be short, as we will be hosting a terrific online symposium in September on judicial deference to an agency’s interpretation of its own regulations (a.k.a. Auer deference or Seminole Rock deference). We have a terrific line-up, including the three scholars featured in this post. But I wanted to highlight now in the […]
Earlier this year my Ohio State colleague Peter Shane and I read at our regular “book club” Leah Litman‘s Taking Care of Federal Law, which was published in the Virginia Law Review. This is such a engaging and provocative paper, and I was glad to see Peter review it for Jotwell last month. Here’s a summary of the paper […]
Reader, no doubt you have come to appreciate just how much nicer the new Notice & Comment looks compared to the old site. (Indeed, the old Notice & Comment looked a lot like this or even this.) To be sure, the transition has not been seamless; I’ve noticed a hiccup now and then. But on […]
I blogged about this project earlier in the year, but I’m excited to report that I finally have a full draft of the article, Legislating in the Shadows, which is forthcoming in the University of Pennsylvania Law Review. This article documents a previously under-explored yet widespread practice—how agencies confidentially assist Congress in drafting statutes—and then explores […]
In the 2005 Brand X decision, the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet […]
Over at the Library of Law and Liberty, I had a post yesterday, entitled Do Judicial Deference Doctrines Actually Matter?, on Kent Barnett and my new article Chevron in the Circuit Courts, which is forthcoming in the Michigan Law Review. In that post, I briefly recap the current debate about whether to get rid of, or […]
Auer deference — the deference an agency receives when interpreting its own regulations — is one of the most powerful tools for the government in administrative law. But the doctrine has faced increasing criticism. Opponents have argued that the doctrine enables agencies to circumvent procedural safeguards by promulgating vague rules through notice and comment and […]
Earlier this year, former U.S. Tax Court Judge Diane Kroupa was indicted for conspiracy to commit tax evasion and obstruction of an IRS audit. During her time on the court, Kroupa authored some significant opinions, including BNY Mellon v. Commissioner, which held that the taxpayer could not properly claim foreign tax credits generated through a […]
My colleague David Zaring and I are hosting a conference in April 2017 entitled, simply enough, Financial Regulation and the Rule of Law. The papers presented are a mix of invited papers and an open call, which I am pasting below. If this topic interests you, we hope you’ll submit. The Wharton School of the […]
About six months ago, I wrote a post on dissenting opinions in the D.C. Circuit. This seems like a good week to update that post with a list of every concurrence and dissent filed in the D.C. Circuit since January 30, 2016. As an added bonus, because students are just now coming back to school, […]
Yesterday over at LegalPlanet, Dan Farber had an interesting post highlighting a right-of-center proposal for more rigorous training in law school on regulatory policy and economics: Since the days of Felix Frankfurter, the Administrative Law course has been a staple of American law schools. It’s a great course, but it’s limited. The same is true […]
Aetna has denied any link between the Justice Department’s effort to block its merger with Humana and the company’s departure from the exchanges. Turns out those denials are not so true. Jonathan Cohn and Jeff Young at the Huffington Post have unearthed a letter from Aetna’s CEO to the Justice Department before the antitrust suit […]
In the last few years, (at least) two important books on legal interpretation have been published: Justice Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts, and then Judge Katzmann’s Judging Statutes. I have blogged a fair amount about Reading Law (posts collected here) and contributed to the Green Bag’s entertaining microsymposium on the […]
This week, the Drug Enforcement Agency (DEA) responded to petitions requesting a redesignation of marijuana for the benefit of scientific research. The DEA refused, citing, somewhat tautologically, the fact that there are no scientifically valid and well-controlled clinical trials demonstrating benefits for certain modalities of marijuana for specific medical indications. DEA affirmed marijuana’s continued status […]