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 […]
Yesterday the Supreme Court issued a 7-2 opinion in Mellouli v. Lynch, an immigration adjudication case dealing with what counts for deportation purposes as a state law “relating to a controlled substance (as defined [by federal law]).” The Court ruled against the Federal Government, refusing to give Chevron deference to the agency’s interpretation of the […]
Here is the May 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. Lots a terrific new scholarship to add to any adlaw geek’s summer reading list. Here’s the top ten: 1. A Snapshot of the Foreign Corrupt Practices […]
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. […]
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 […]
Many thanks to Peter Conti-Brown for his kind words about my book and his invitation to guest-blog here. I’ve been greatly enjoying Notice & Comment since its launch, and it’s an honor to be in the company of so many distinguished legal scholars. As a way of launching my discussion, let me offer a very […]
It’s my pleasure to introduce guest blogger Philip Wallach, a Fellow in Governance Studies at the Brookings Institution. Philip is the rather rare political scientist who doesn’t take an extreme view of law, neither as politics by another means nor as a black box of binding but indiscernible rules. He is the author of an […]
In Validus Reinsurance Ltd. v. United States, the D.C. Circuit addressed the potential conflict between Chevron and the presumption against the extraterritorial application of statutes. In that case, a foreign company, Validus, reinsured other insurance companies’ policies. Validus then sought protection for its own reinsurance risks, and it purchased reinsurance from other foreign companies. The D.C. […]
Sara Rosenbaum and Tim Westmoreland have an interesting new piece out at the New England Journal of Medicine on the Patient CARE Act, a Republican proposal to transform Medicaid into a block grant program (among other things). Not only is the Patient CARE Act bad policy, they argue, but the move to block granting could […]
Agency use of guidance documents (defined here as agency rules issued as either interpretive rules or policy statements) has been hot topic in administrative law lately. The Supreme Court recently rejected a D.C. Circuit doctrine that was intended at least in part to deter agency abuse of guidance. Several justices have expressed an interest in reducing […]
In my last post, I observed that there was a dilemma posed by the current system of producing and moving medicines and vaccines from the developed, wealthy countries of North America, Europe and the Pacific Rim to low-resource countries in Asia, Africa and South America. The public health urgency of distributing medicines and vaccines often […]
I might be accused of picking at low-hanging fruit, but I’d nonetheless like to devote another blog post to more IRS regulations that expand and contradict Section 36B. My prior blog posts, which I’ve adapted into an essay upcoming in Bloomberg BNA, discuss regulations that improperly extend ACA premium tax credits to persons in the […]
As Andy Hessick noted a few posts back, the Supreme Court recently granted cert in an important energy law case. FERC v. Electric Power Supply Association deals with FERC’s attempt to create a demand response program at the wholesale level. This is an issue that I’ve blogged about before; other scholars have written some great […]
Last week, Will Baude published a column in the New York Times, available here, arguing that the Court should postpone deciding Zivotofsky v. Kerry, a case already argued this term, until it decidesSpokeo v. Robins, which is slated for next term. The two cases seem quite different. Zivotofsky is about Congress’s and the President’s power […]
Administrative agencies regularly interpret statutes in the course of rulemaking, but there is little data about how they go about interpreting those statutes. Do the rulemakers rely on canons of interpretation? Do they look at legislative history? These questions are important for many reasons, one of which is whether agencies act as faithful agents of […]