From cancer-causing talc in baby powder to defective ear plugs sold to the military, to sexual assault in the Catholic Church, bankruptcy courts are increasingly becoming the default venue for mass torts.  Scholars have sharply debated whether bankruptcy courts are the right venue to decide questions of accountability, to apportion blame, and to set compensation for victims of large-scale corporate wrongdoing.  On the […]

Today, in SEC v. Jarkesy, the Supreme Court held that under the Seventh Amendment a regulated entity is entitled to a civil jury trial when the SEC seeks to impose civil penalties. In other words, when it comes to these civil penalties, Congress, by statute, cannot force regulated entities to defend themselves before an in-house […]

Today was a big administrative law day at the Supreme Court. And while Jarkesy was the more anticipated opinion, I found myself most interested by Ohio v. EPA, which stayed enforcement of an EPA rule designed to control ozone pollution that crosses state lines. The decision was 5-4, with Justice Gorsuch writing for the majority […]

As we all await the next administrative law earthquake from the Supreme Court, it may be worth taking stock of just how much the ground has already shifted. In our new article, Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules, we provide this analysis. Using a novel dataset […]

On June 6, 2024, the United States Supreme Court held in Connelly v. United States that life-insurance proceeds earmarked by a corporation for redemption of a deceased shareholder’s stock must be included when valuing the corporation for estate-tax purposes.  This is a major blow for closely held business succession planning and denies estates a potentially […]

Thank you for your wonderful support in making the 2023 Administrative Law Section Fall Conference another great success. We conducted a Qualtrics survey of all attendees and speakers at the 2023 Conference, and results indicated a majority preference for a Virtual Conference in 2024. As a result, we are planning to again hold a virtual […]

Here is the May 2024 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 Bill Funk. Thanks to my terrific research assistant Neena Menon for helping put together this monthly post, and congratulations on graduating last month. I’m so excited to follow your career […]

On September 29, 2023, shortly after the FTC filed its complaint alleging that Amazon is illegally monopolizing the market for online sales of goods, I wrote a blog in Notice and Comment titled FTC v. Amazon Should Be Khan v. Khan. I began by noting that FTC Chair Khan had obtained her initial notoriety by […]

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” After a three-year hiatus, we’re back! Let’s get straight to business. Each of the following statements is from a different opinion by Judge Lawrence VanDyke in the same controversy: Over the last 10 […]

Clear statement rules are having a moment at the Supreme Court. Recently, in Harrow v. Department of Defense, the Court held that a statutory deadline for an appeal from a Merit Systems Protection Board ruling was non-jurisdictional. In its unanimous ruling, the Court applied a “clear statement rule”: Congress must speak clearly if it means […]