On January 17, the Supreme Court will hear oral argument in the closely watched case of Loper Bright Enterprises v. Raimondo. The Court will consider whether to overrule, or at least curtail in one way or another, the deference doctrine articulated in its landmark Chevron v. Nat. Res. Def. Council (1984) decision. As readers of this space know, […]
The D.C. Circuit rung in the new year with three opinions. Two were administrative law opinions and one dealt with criminal law. For administrative lawyers, the first week of the new year brought no new law but rather straightforward applications of precedent concerning the FEC and FERC. In Campaign Legal Center v. FEC, the D.C. […]
Now that the grocery giant Kroger has certified its substantial compliance with the Federal Trade Commission’s request for information, the antitrust regulator must decide how to proceed with Kroger’s $24.6 billion acquisition of its rival Albertsons. Kroger happens to be based in Cincinnati, my hometown, where it’s an important part of the corporate base. However, I’m rooting against the […]
As you might expect for a holiday week, the D.C. Cir. had a slow week the last week of 2023, handing down just one opinion certifying a question of D.C. tort law to the D.C. Court of Appeals. The first week of the new year looks to be quiet, too, but activity picks up quite […]
At the Association of American Law Schools (AALS) annual meeting in Washington, DC, this week, I’ll be moderating a terrific panel on the student loan cancellation cases the Supreme Court decided last term. The panel will take place on Thursday, January 4, 2024, from 4:45-6:30PM, and it will be livestreamed here. Here’s a description of […]
Since 2015, I’ve served as co-editor, currently with the brilliant Miriam Seifter, of the the Administrative Law Section of The Journal of Things We Like (Lots) (“Jotwell”). Jotwell is a terrific resource for administrative law practitioners and scholars. Roughly once a month, Jotwell’s Administrative Law Section publishes a short review of a current piece of administrative law scholarship, usually […]
With apologies for allowing family celebrations to interfere with timely reporting, here is a brief review of the three decisions handed down by the D. C. Circuit last week. (If you were looking for such reporting last weekend, you are working too hard!) In United States v. Trump, No. 23-3190, Judge Millett, joined by Judges […]
Today’s Ad Law Reading Room is “The Myth of the Federal Private Nondelegation Doctrine,” by Alexander Volokh, which was recently published by the Notre Dame Law Review and posted to SSRN. Here is the abstract: Judges and scholars have often claimed that delegations of governmental power to private parties are constitutionally prohibited. However, such a […]
Belatedly, here are the summaries of last week’s decisions. Yesterday’s unsealed opinion in United States v. Trump will await a future post. Both decisions from last week come in lawsuits against Attorney General Garland relating to matters that have been in the news. The first, Langeman v. Garland, concerns the FBI’s decision to terminate Michael […]
On December 5th, the Supreme Court heard oral argument in Moore v. United States, a constitutional challenge to the mandatory repatriation tax (“MRT”) in the 2017 Tax Cuts and Jobs Act. The case raises basic questions about the scope of Congress’s taxing power, and has the potential to reshape and limit federal taxation. (Ben Silver had a nice […]
Here is the November 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 post on the subject here. You can check […]
Today, the Competitive Enterprise Institute has released a new report, by Ryan Young and Stone Washington, entitled Conflict of Justice: Making the Case for Administrative Law Court Reform. Here’s a taste of the report, from conclusion: Administrative law courts are unfair and regressive. They violate the separation of powers. They do not relieve regular court […]
In a pair of cases set for argument in January, the U.S. Supreme Court has been asked to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. I’m going to suggest that whether Chevron should be overruled isn’t exactly the right question. That’s because Chevron—at least the part of it that most people are interested in—didn’t make binding […]
Earlier this week I sat down with Eric Segall to participate in his Supreme Myths podcast. We chatted about about all things administrative law, including the major questions doctrine, the current cases (Loper Bright and Relentless) before the Supreme Court challenging Chevron deference, and SEC v. Jarkesy, the constitutional challenge the Court heard last week […]
Artificial intelligence (AI) is kryptonite to the Rule of Law. Where the Rule of Law demands “clear, general, publicly accessible rules laid down in advance,” advances in AI occur for unknown reasons, at unknown times, and with unknown effects. Where the Rule of Law requires prospective regulation, AI advances faster than the courts and Congress can handle. And, where the Rule of Law cautions against […]