Soon after the Supreme Court decided West Virginia v. Environmental Protection Agency, we wrote a short analysis outlining the major questions doctrine as laid out by the Court. Our piece was not rocket science. We simply summarized the majority’s test for determining whether an agency’s legal interpretation triggers the doctrine. But as we expected, many […]
As the Supreme Court ponders what to do with Chevron in Loper Bright Enterprises v. Raimondo and Relentless Inc., et al. v. Department of Commerce, Idaho’s Simplot test might provide a way to keep but cabin deference. In 1991, in J.R. Simplot Co. v. Idaho State Tax Comm’n, the Idaho Supreme Court crafted a unique […]
Not much of a unifying theme in the past week’s D.C. Circuit decisions. The most significant decision was likely Farhy v. Commissioner of Internal Revenue, No. 23-1179, where the court (Judge Pillard writing) held that the IRS can assess and administratively collect penalties for failure to file information returns regarding ownership of foreign businesses. The […]
As we await the Supreme Court’s decisions in Relentless and Loper Bright, left-leaning scholars and activists have bemoaned the demise of Chevron deference as harmful to progressive values. But this is not true in at least one area of law: banking. Where Congress enacted incredibly progressive statutes, courts granted Chevron deference to regulators’ interpretations in […]
While all eyes and ears were on the oral arguments before the Supreme Court in Trump v. United States, No. 23-939, the D. C. Circuit’s landmark decision regarding presidential immunity, the court went about its normal business, issuing three opinions on matters less grand but important nonetheless. The Federal Service Labor-Management Relations Statute authorizes aggrieved […]
On April 23, 2024, the FTC voted 3-2 to adopt a final rule prohibiting non-compete agreements in employment contracts. The two Republican Commissioners dissented on a variety of grounds, including that the FTC does not have substantive rulemaking authority under Section 6g of the FTC Act, the major questions doctrine, that the rule is arbitrary […]
Join us in Washington DC for an exceptional conference exploring the forefront of administrative law and government policymaking during a two-day live event in the heart of our nation’s capital. This year, our program will commence with Thursday sessions at The George Washington University Law School, featuring academic workshops, and will conclude with a networking […]
Today’s Ad Law Reading Room entry is “After Courts: Democratizing Statutory Law,” by Ryan D. Doerfler & Samuel Moyn, which is forthcoming in the Michigan Law Review. Here is the abstract: In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never […]
It’s the end of the semester, so many professors are gearing up to grade final exams and thus seeking opportunities to procrastinate. There’s lot of great new administrative law scholarship to help on that front. Here is the March 2024 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative […]
In light of the FTC’s vote yesterday to adopt a rule banning non-compete agreements, readers might be interested to see what the Attorney General’s Committee on Administrative Procedure said about FTC rulemaking in its 1940 monograph. The Committee prepared 26 monographs examining the actual practices and procedures of administrative agencies, and this research informed a […]
Last week was criminal law week at the D.C. Circuit. All three opinions issued in criminal appeals. I’ll turn to those shortly, but first something a little closer to this blog, if a bit further back in time: two weeks ago, fellow blogger, Judge Thomas B. Griffith, visited Mizzou Law School to speak about our […]
Our Constitution is not and never was perfect. The Framers intended for it to undergo amendment as required to maintain the spirit of the Revolution and to prevent the recurrence of the weaknesses that saddled our government under the Articles of Confederation. Yet, amending the Constitution has become nearly impossible in our current political environment. […]
Many state and local officials host social media sites and use them to converse with followers on matters related to their governmental responsibilities, among other things.[1] Not surprisingly, many choose to block from their sites certain members of the public they find disagreeable.[2] Being disagreeable, or at least in disagreement with such actions, blocked followers […]
The Duke Law Journal invites papers for its 55th Annual Administrative Law Symposium, to be held in spring 2025 at Duke University School of Law in Durham, North Carolina. We will choose symposium articles in August, to allow for submissions analyzing the future of administrative law in the context of major cases like Relentless Inc. […]
A North Dakota truck stop opened its doors in 2018. It pays debit card “swipe fees” to banks at the maximum rate set by Federal Reserve regulations promulgated in 2011. May it challenge the regulations under the Administrative Procedure Act, or APA, as (1) arbitrary and capricious and (2) ultra vires, or in excess of […]