Doctors learn about removing stitches. Dentists train to take off those pesky braces. Lawyers, however, spend little of their education studying when a law needs to come off the books. This isn’t a new problem. As noted by Karl Llewellyn in 1935, law students come to think that “for too much law, more law will be […]
The Supreme Court’s recent decisions on deference and delegation have attracted enormous attention from judges, policymakers, lawyers, and scholars — and rightly so. But those debates have overshadowed other significant shifts in the courts’ review of administrative actions. Among them is “hard look review”—the courts’ review of an agency’s analysis and explanations, under the Administrative […]
The University of Michigan Law School is very pleased to host the Tenth Annual Administrative Law New Scholarship Roundtable on May 19-20, 2025. For the past nine years, the Roundtable has offered administrative law scholars an excellent opportunity to get feedback on their work from distinguished scholars in a collaborative setting. Approximately twelve authors will […]
Six years after the Supreme Court took on the question in Gundy v. United States, 588 U.S. 128 (2019), of when, if ever, Congress has unconstitutionally delegated legislative power to the executive branch, the Court will try again to articulate a standard that a majority of the Court can accept. The case is FCC v. […]
On January 14, 2025, the Administrative Conference of the United States (ACUS) announced that it is seeking researchers to serve as consultants on five new projects directed towards the development of formal recommendations to agencies, Congress, and the President. The consultant(s) selected for each project will, among other things, prepare a report, work with a […]
Today’s Ad Law Reading Room entry is “The Administrative State’s Second Face,” by Emily Chertoff and Jessica Bulman-Pozen, which is forthcoming in the NYU Law Review. Here is the abstract: We often assume that there is one administrative state, with one body of administrative law that governs it. In fact, the administrative state has two […]
Today the U.S. Chamber of Commerce filed an amicus curiae brief in support of neither party in FCC v. Consumers’ Research, articulating a proportional approach to the nondelegation doctrine. Here’s the start of the argument: The Constitution vests the Legislature with discretion in making policy and vests the Executive with discretion in executing the law. […]
Loper Bright Enterprises v. Raimondo, of course, overruled Chevron v. NRDC, ending judicial deference to administrative agencies conferred by ambiguous statutory language. The opinion also acknowledged that in many statutory provisions, Congress delegates discretionary authority to administrative agencies. If so, agencies rather than courts have primary responsibility for interpreting the statutory language. Professor Chris Walker has called […]
The Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo will fundamentally change the courts’ approach to interpreting regulatory statutes and reviewing the actions of administrative agencies. The Court renounced Chevron deference: under the APA, “courts must exercise independent judgment in determining the meaning of statutory provisions.” “In exercising such judgment,” the Court added, “courts may—as they have […]
The Corporate Transparency Act (CTA) has ignited a firestorm of legal challenges in the Fifth Circuit. In the last five weeks alone, three different district judges have issued three separate opinions resulting in two nationwide injunctions—one of which is already before the Supreme Court. In Texas Top Cop Shop, Inc. v. Garland, the plaintiffs contested […]
Two admin law (or adjacent) opinions, in both old and new cases, last week. The new case is Citizens Action Coalition of Indiana v. FERC, No. 23-1046, which began somewhat lyrically for a FERC case: “As night follows day, an environmental challenge follows the approval of a natural gas pipeline.” In short, the court rejected […]
The following may be of interest to readers of Notice & Comment: With support from the Hewlett Foundation, Nicholas Bagley (Michigan), Zachary Liscow (Yale), and the Niskanen Center will be hosting the Law of Abundance Conference in early 2026. A nascent movement known as “the Abundance Agenda” or “the State Capacity Movement” is drawing attention to how lackluster […]
Read Part I here, Part II here, and Part III here. Congress abdicates its responsibility by relying on the courts to enforce bureaucratic oversight. The received antidotes to the administrative state—workforce reduction, ending judicial deference to agency interpretations of statutes, or demanding Congress write unambiguous laws—are hardly new; they have been recommended for as long […]
Read Part I here and Part II here. Special interests hold power in the administrative state. Political scientists and legal scholars suggest the administrative state exists because as policy problems became more complex, Congress needed to develop expertise within the executive branch to not only understand the economic and technological changes in the postbellum American […]
Read Part I here. Arbitrary bureaucratic power is at its highest when agencies determine the scope of their own jurisdiction, but jurisdiction protects the special interests influencing the bureaucracy. A brief illustration of real-world issues demonstrates what I mean by agency “jurisdiction.” Example 1 Medical testing laboratory LabMD helped physicians diagnose prostate cancer. An employee […]