Now that I have finished clerking and am back in the scholarly trenches, I’m trying to catch up on a year’s worth of administrative law scholarship. (Why, you ask, didn’t I read more law review articles during my clerkship? Because no one at the Supreme Court reads law review articles anymore. *) And the first […]
So I am the newest contributor to this blog. I teach administrative law and federal courts at Brigham Young University. I plan on blogging about D.C. Circuit administrative law decisions in a regular feature dubbed D.C. Circuit Review – Reviewed. The feature will begin later this month. Today, however, merits a special post. Friday morning […]
In my prior post, I discussed how the IRS has flouted the Administrative Procedure Act in issuing proposed regulations regarding tax-motivated “fee waiver” transactions undertaken by private equity firms. Although the IRS has long disregarded the democratic safeguards otherwise assured by the APA, it has generally faced little consequences for its actions. For example, tax […]
Pardon my long hiatus from blogging. The reason was a move, from Princeton, NJ where I was working (and will continue to work) on my PhD in financial history, to Philadelphia, PA, where I am now an assistant professor at Wharton/Penn, teaching in the Legal Studies and Business Ethics Department (those who follow any aspect […]
Here is the July 2015 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 William Funk. I may as well retitle this post the Cass Sunstein Edition, as three of the top five papers are authored by Professor Sunstein. [Aside: When I worked as a […]
The House Financial Services Committee overwhelmingly passed a bill declaring that the Consumer Financial Protection Bureau’s (“CFPB”) much-debated guidance document (“Bulletin”) on indirect auto lending to “have no force or effect.” At first glance, this bill would do nothing legally. Under administrative law doctrine, guidance documents like the Bulletin lack legal effect by definition. The […]
In my previous post, I briefly discussed how the IRS has short-circuited the APA’s notice and comment rulemaking procedures to combat tax motivated transactions by private equity firms. I’d like to further flesh out that point here. Given the general readership of this blog, I’ll start by considering a hypothetical environmental statute and then turn […]
In my survey of federal agency rule drafters, I decided to ask a question about the role of presidential signing statements in agency statutory interpretation. In particular, I included a list of nine types of legislative history and asked: “For each of the following, please tell us if the type of legislative history is a (VR) […]
Earlier this week, the IRS issued regulations related to private equity “fee waiver” transactions, which are designed to convert high-taxed ordinary income into low-taxed capital gain. At first, I was pleasantly surprised by the IRS’s method of rulemaking here. Usually, when it issues regulations, the IRS announces that the APA does not apply, and it […]
In recent terms, several justices have expressed concern about the breadth of powers held by administrative agencies. Those views have been expressed in concurrences and dissents. Agencies accordingly have not seen substantial changes to their authority—though one notable exception is King v. Burwell, which resulted in the Court strengthening Chevron step zero by saying that agencies […]
As I’ve blogged about before, the role of cost-benefit analysis—and economic analysis more generally—in financial regulation has been a hot topic in recent years among scholars, policymakers, regulators, and the regulated. This debate has been sparked in part by the D.C. Circuit’s aggressive review of SEC rulemaking—in cases like Business Roundtable v. SEC and others—and […]
The agenda-setting phase of the regulatory process is critically important. In a time of constrained agency budgets and mounting policy challenges, an agency may send an important signal to market participants simply by placing an issue onto its agenda. Agency agenda-setting can also frame subsequent policy debates. Agenda-setting is a difficult topic to study partly […]
I previously blogged here about Nicholas Parrillo‘s terrific book Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013), noting that the book “is a fascinating read for anyone interested in the history (and future) of administrative law and regulation.” Recently in the pages of the Harvard Law Review, Jon Michaels reviews Nick’s […]
In 1992, the IRS issued proposed regulations designed to combat a tax strategy used by the May Department Stores Company. Although the regulations were not immediately effective, the IRS announced that it when it finalized them, the regulations would apply retroactively to 1989. Consequently, some taxpayers took the proposed regulations into account in structuring their […]
Here is the June 2015 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 William Funk. There are a number of terrific new papers, including great reads from Josh Chafetz, Gillian Metzger, Liz Porter, Cass Sunstein, and Adrian Vermeule. Here’s the top ten: 1. […]