Two weeks ago, in MetLife v. Financial Stability Oversight Council, District Judge Rosemary Collyer (D.D.C.) sent waves through the financial services industry and among scholars of cost-benefit analysis. Relying in part on the Supreme Court’s decision last Term in Michigan v. EPA , the district court held that the FSOC violated the Administrative Procedure Act […]
Dear 1Ls, Last fall I wrote a letter to your 2L colleagues. Now I’m going to write to you. Here’s the bottom line: If you want to clerk, the next few months are important. Many judges are waiting until applicants have their third or even fourth semester of grades. (Indeed, some judges prefer to interview […]
In Gobeille v. Liberty Mutual , the Supreme Court held that ERISA trumps state laws that require self-insured employers to share data on the prices they paid for health care for their employees. Predictably, and sadly, those employers look like they’re taking full advantage (paywalled) of the Court’s decision: Plans that provide health insurance in […]
Along with colleagues at the Public Health Law Center, I published an article this week in the journal Tobacco Control that critically reviews the FDA’s implementation of its authority to regulate the sale of new tobacco products. In 2009, Congress passed the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act), establishing federal authority to […]
What a pleasure it has been to read these reviews. As I set out to write The Power and Independence of the Federal Reserve , this very audience—serious scholars and practitioners of administrative law who had thought hard about institutional design in other contexts besides the Fed—weighed heavily as one of the primary groups of […]
Scholars of administrative law study lots of things. We think, for instance, about recess appointments, especially in an era of divided government. We spend hours sussing out the differences, if any, between standards of review. All the while, we wonder what makes an “interpretative” rule interpretative, and whether certain areas of law are exceptional. And […]
Earlier this week, in my commentary on Texas’ brief in the DAPA case, I wrote that “In order to get a Social Security number, non-citizens must be ‘lawfully present in the United States as determined by the [Secretary].’” That’s actually not quite correct. A non-citizen must be deemed “lawfully present” to receive Social Security benefits. […]
Readers are hard to please. It is bad enough that we criticize books that we could not even begin to write. But even worse, when an author has penned something that we like, all too often our response is not “thank you” but rather “more please”—and sometimes we don’t say “please.” I confess that after […]
When an independent agency is created, from whom does it gain independence – the President, Congress, or the people? Maybe the better question is whether it is really independent at all. One thing in particular that caught my eye is Peter Conti-Brown’s focus in Part III on the independence of the Federal Reserve Board (Fed) […]
Here is an interesting fact: the D.C. Circuit has invoked Charles-Louis de Secondat, baron de La Brède et de Montesquieu—better known as Charles de Montesquieu, the Baron Montesquieu, “ the celebrated Montesquieu,” or just Montesquieu—on at least nine separate occasions. Included in this list are some notable cases: Nixon v. Sirica, Buckley v. Valeo, and […]
Last month I offered some thoughts on the Obama Administration’s opening brief in United States v. Texas, the pending Supreme Court challenge to the President’s deferred action policies for unauthorized immigrants (known as DAPA and DACA). Texas has now filed its brief opposing the programs. Looking at this from the 10,000 foot level, there are […]
I join my fellow colleagues in praising Peter Conti-Brown’s The Power and Independence of the Federal Reserve. The book provides an insightful history of the Federal Reserve since its 1913 inception and is a powerful account of the extent to which “personnel is policy.” In particular, I note his nuanced understanding of “agency independence” as […]
A sincere thank you to Peter Conti-Brown for his efforts to reach the public in his book The Power and Independence of the Federal Reserve. First, I begin by revealing that my practice is far removed geographically and figuratively from those who ponder the rationale for the power and independence of the Federal Reserve. My […]
Last week over at Jotwell, Richard Murphy reviewed Auer in Action: Deference After Talk America byCynthia Barmore, which was published last year in the Ohio State Law Journal. Here’s a summary of the paper from the SSRN abstract (the paper is available on SSRN here): For decades, judges and commentators took for granted that courts should […]
Administrative law doctrine and scholarship has traditionally treated agencies as unitary entities and focused upon the proper allocation of authority among agencies, the President, Congress, and the courts. Recently, however, scholars have begun to unlock the “black box” of agency design to identify and evaluate the ways in which administrative law rules allocate decisionmaking authority […]