Section 553 of the Administrative Procedure Act, more commonly known as the notice-and-comment rulemaking process, is hailed as “one of the greatest inventions of modern government.”[1] In my forthcoming Article—prepared for the Annual Review of Administrative Law issue—I consider the innovative value of Section 553 from the perspective of two problems identified by economist Friedrich A. Hayek. To […]
The oral arguments this week in Biden v. Nebraska and Department of Education v. Brown on student debt cancellation gave the Supreme Court another opportunity to expand upon the major questions doctrine, which the Court formally gave life last term in West Virginia v. EPA, 142 S. Ct. 2587 (2022). Daniel Deacon and Leah Litman have criticized the “new” major questions doctrine’s reliance on political […]
The Society for Benefit-Cost Analysis will hold its annual meeting in-person on March 9-10 and online on March 13-14. As in the past, there are many sessions pertaining to the use of benefit-cost analysis in regulation and regulatory decision making that those who study administrative law will find useful. Those include: Regulatory Policy in the United States: […]
During oral argument in Department of Education v. Brown, the second case concerning the Biden Administration’s student loan forgiveness plan, the question arose whether it is proper for a single district or circuit court to impose a nationwide injunction against a federal policy where doing so is not necessary to provide complete relief to the […]
I’m traveling this weekend. So I decided to cheat with my post. Instead of taking time to explain the D.C. Circuit’s opinions this week, I asked ChatGPT to summarize them for me. First, I asked ChatGPT to “Summarize Warren Harris v. Muriel Bowser from DC Circuit.” This is what I learned: In Warren Harris v. […]
The Judicial Division of the ABA is hosting a virtual CLE webinar on the independence of agency adjudicators on March 17 at 1pm eastern. The focus is on immigration courts, but the program will tie problems with the immigration courts to administrative adjudication generally. Register here: https://www.americanbar.org/events-cle/mtg/web/429200180/?login Speakers: Hon. Joan Churchill, Immigration Judge (Ret.), Chair […]
The Administrative Conference of the United States (ACUS) is requesting public input on how agencies can better identify and reduce unnecessary procedural burdens faced by the public when engaging with administrative programs or participating in administrative processes. The request for information, published in the Federal Register on February 15, 2023 (88 Fed. Reg. 9851), is also […]
Welcome to the Ad Law Reading Room, a new series here at Notice and Comment that will highlight recent scholarship in administrative law and related fields. Today’s article is “Executive Capture of Agency Decisionmaking” by Professor Allison M. Whelan, which was recently published by the Vanderbilt Law Review and posted to SSRN. Here is the […]
During the 116th Congress, the House Select Committee on the Modernization of Congress recommended that the Government Accountability Office (GAO) study the feasibility of establishing a congressional equivalent to the DOJ’s Office of Legal Counsel (OLC). OLC is the much discussed component of the Department of Justice that issues legal opinions binding on Article II actors. This study […]
Now that the United States Senate has reassembled for the 118th Congress after a brief hiatus, the upper chamber must promptly appoint President Joe Biden’s exceptional nominee Bradley Garcia to the United States Court of Appeals for the District of Columbia Circuit. The tribunal has become the second most important court in the United States, […]
The Nominations Committee of the ABA Section of Administrative Law and Regulatory Practice is seeking nominations, including self-nominations, to fill leadership positions on the Section’s governing council. We will start considering nominations on March 6, 2023, but we will continue to consider additional nominations on a rolling basis through the middle of March. A simple […]
The D.C. Circuit issued four opinions last week, and the lesson is to remember to file in the right place at the right time. The first opinion concerns a private right of action under the Rehabilitation Act, and the remaining three each rejects the respective appellants’ claims as filed too late, too early, in the […]
FTC Commissioner Christine Wilson, the only Republican member of the FTC, announced her resignation from the FTC this week. She explained her decision to resign in an op-ed in the Wall Street Journal. She accused FTC Chair Lina Khan and her Democrat colleagues of unethical, illegal, and unconstitutional conduct. This is the most significant resignation […]
Join us for a free webinar sponsored by the ABA Section of Administrative Law and Regulatory Practice on the impact of ChatGPT and other A.I. technologies on public comments in rulemaking on Friday, March 3, 2023, 12:00-1:30 pm Eastern Time via Zoom. Register for free here. Program Description ChatGPT and other technologies using large language models […]
May an agency revive a defunct rulemaking without notice, and then immediately promulgate a lightly revised version of the proposed rule as a final rule? The Department of Health and Human Services (“HSS”) arguably did just that in promulgating its rule specifying the administrative dispute resolution (“ADR”) process[1] for conflicts between drug makers and certain […]