This summer has been a good one for new administrative law scholarship. Here is the June 2021 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. Interest-Group Theories of Regulation: A Skeptical Note by Cass R. Sunstein Remand and […]
Today the Supreme Court issued its decision in Collins v. Yellen, the constitutional challenge to the single-head leadership structure of the Federal Housing Finance Authority (FHFA). This is a follow-on case to the Supreme Court’s decision last Term in Seila Law v. Consumer Financial Protection Bureau, in which the Court held that the CFPB’s leadership by […]
Today the Supreme Court issued its decision in United States v. Arthrex, the case raising an Appointments Clause challenge to administrative patent judges (APJs) on the Patent Trial and Appeals Board (PTAB) at the U.S. Patent and Trademark Office (USPTO). In a 5-4 decision on the merits (and 7-2 on the remedy), the Court holds […]
*This is the sixth post in a series on Alex Platt’s new Article, Is Administrative Summary Judgment Unlawful? For earlier posts in the series, click here. Alex Platt takes aim at the Securities and Exchange Commission’s Rule of Practice 250, which authorizes “summary disposition” on the papers in administrative enforcement proceedings where there is no […]
*This is the second post in a series on Alex’s new Article, Is Administrative Summary Judgment Unlawful? For earlier posts in the series, click here. My last post argued that the text, legislative history, and legal historical context of the Administrative Procedure Act (APA) demonstrate the statute prohibits enforcement agencies from using administrative summary judgment […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. FTC Gets Yellow Card over Post-Lucia Constitutional Concerns After Free Enterprise Fund and Lucia, the constitutionality of independent agency adjudications became an open question. This legal uncertainty, in turn, engendered a spate of original actions […]
In advance of next month’s annual ABA Administrative Law Conference, Chris Walker, Matt Wiener, and I have been tracking developments in administrative adjudication so far this year. Chris and Matt will present our research during the Conference’s Developments in Administrative Law program on November 20. By way of a preview, I’ll share a few of […]
How much power does the Constitution give the President to fire the heads of departments, and what does this imply about lower-level civil servants who staff those departments? The former question has been debated since the First Congress, of course; and the latter question since the Pendleton Act. And both questions are once again in the […]
Nope!* * It’s been a good run. If you’re interested, here is the complete list of posts: August 2015: Obamacare Round 3? King Solomon and the APA “It was the best of times ….” Can You Keep a Secret? September 2015: The Second Most Important Court? The Future of […]
Last week was a bad one for the DDC. Well, this week was a bad one for the D.C. Circuit. In Seila Law v. CFPB, the Supreme Court rejected the en banc D.C. Circuit’s decision in PHH Corp. v. CFPB. Familiarity with PHH Corp. and Seila Law will be assumed for this week’s post. (If […]
From the Administrative Law Review: A Hard Look started in October, 2019, as a way to expand the accessibility of the Administrative Law Review. In its first year, and with only three episodes, the podcast has generated over one thousand hits and covered developments in the Supreme Court cases Kisor v. Wilkie, Department of Commerce […]
Kent Barnett, Emily Bremer, and I are thrilled to have organized the Duke Law Journal‘s fiftieth annual administrative law symposium, entitled Charting the New Landscape of Administrative Adjudication. The live symposium takes place this Friday, February 14, 2020 (Valentine’s Day!), so if you’re in the area definitely come join us. I’ll post links to the […]
To Justice Breyer’s chagrin, the Court in Lucia v. SEC and Free Enterprise Fund v. PCAOB expressly declined to resolve whether the U.S. Constitution condones statutory protection from at-will removal for administrative law judges and other similarly situated agency adjudicators. These thousands of adjudicators enjoy two layers of for-cause statutory protections between them and the […]
On October 31, 2019, the Federal Circuit in Arthrex, Inc. v. Smith & Nephew, Inc., No. 2018-2140, ruled that Administrative Patent Judges (APJs) are “principal officers” of the United States under the Appointments Clause in Article II, section 2, clause 2 of the Constitution. Because the appointments of APJs do not comply with the Constitution, their rulings […]
Separation-of-powers cases tend to be controversial. For instance, when the D.C. Circuit last addressed removal and initially concluded that Congress could not grant the Consumer Financial Protection Bureau’s Director “for cause” protection, the United States argued that the panel had “set[] up what may be the most important separation-of-powers case in a generation.” What followed […]