The ABA Section of Administrative Law and Regulatory Practice is seeking nominations for leadership positions on our governing council. Please help us continue our legacy by nominating brilliant thoughtful lawyers with diverse views, perspectives, backgrounds, and roles in the field of administrative law. A nomination can be as simple as a few sentences. That said, […]
January has gone by quickly, but here is the December 2023 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. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first […]
Next month, the Supreme Court will hear arguments in constitutional challenges to a pair of laws from Florida and Texas that would force social media sites to disseminate a wide range of third-party speech that they do not wish to carry. FCC Commissioners Brendan Carr and Nathan Simington have written a defense of Texas’s law, HB20, which would require certain […]
(This is my “Chair’s Comment” in the newly published Fall 2023 issue of Administrative & Regulatory Law News, from the ABA’s Administrative Law Section. If you’re not already a member of the section, I hope you’ll join us.) At Stanford’s Hoover Institution, the best conference room is a tribute to the late Secretary of State […]
I’ve got an article at The Atlantic about the arguments in Relentless and Loper-Bright. In a world without Chevron, agencies will be hard-pressed to know how deferential the courts will be in reviewing decisions that mix policy and law. “If I’m an agency and I’m trying to be responsible, how is this going to work as […]
When the Supreme Court met last week to reconsider judicial deference to agencies’ legal interpretations, the justices grappled with one of the most unsettling qualities of modern government: sweeping policy changes from one administration to the next, which create immense regulatory uncertainty. Chevron deference “ushers in shocks to the system every four or eight years when […]
The University of Notre Dame is pleased to host the 9th Annual Administrative Law New Scholarship Roundtable on June 25-26, 2024. For the past eight 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 be selected to […]
ACUS Adopts Four New Recommendations On Thursday, December 14, 2023, the Administrative Conference of the United States (ACUS) convened its 80th Plenary Session. Following a keynote address by former OIRA Administrator Cass Sunstein on the effect of administrative burdens, or “sludge,” in federal programs, the Assembly debated, amended, and ultimately adopted four new recommendations. A […]
The parties’ briefing in Loper Bright and Relentless[1] has utterly ignored statutory sections—and one section in particular—that are crucial for understanding both why the government should lose these cases and, more importantly, why the Chevron doctrine[2] cannot and should not survive in an era of textualism. The relevant statute—the Magnuson-Stevens Fishery Conservation and Management Act—superficially appears complex and hard to understand. […]
Doctrinal Crossroads: Major Questions, Nondelegation & Chevron DeferenceThursday, January 25, 2024, at 8:15 a.m.-6:00 p.m. ESTLocation: Harvard Law School, 1585 Massachusetts Ave, Cambridge, MA 02138 Join Pacific Legal Foundation and the Harvard Journal of Law & Public Policy for our day-long law symposium, “Doctrinal Crossroads: Major Questions, Nondelegation & Chevron Deference.” The symposium will feature moderator-led discussions […]
Dan Ho and I have an op-ed in The Hill today criticizing the Biden administration’s proposed rules for using artificial intelligence in government services. [W]here the rules could go astray is in their breadth. The rules prohibit the use of AI in “government services” unless agencies comply with an extensive set of procedures. Those procedures […]
The D.C. Circuit issued three opinions last week, one about interlocutory appeals, another what constitutes a “labor organization” under the NLRA, and a third FERC case. One interesting development is that the D.C. Circuit recognized another class of immediately appealable orders under the “collateral order doctrine.” The normal rule is that only decisions that “trigger […]
Introduction The Supreme Court heard argument last month in Moore v. United States, a case with potentially broad implications for the income tax system. The case involves a challenge by the Moores, two individual taxpayers, to 26 U.S.C. 965, known as the Mandatory Repatriation Tax (“MRT”), which is a provision of the 2017 tax reform legislation. As […]
Big Tech claims a broad First Amendment right to censor user speech. FCC Commissioners Carr and Simington explain why that’s wrong.
Today’s Ad Law Reading Room entry is “Second-Class Administrative Law,” by Matthew Lawrence, which is forthcoming in the Washington University Law Review. Here is the abstract: Administrative law ordinarily presumes that someone hurt by “arbitrary and capricious” agency action may seek relief in federal court unless Congress says otherwise. Administrative law does the opposite, however, […]