On Tuesday, the Supreme Court will hear oral argument in Moore v. United States, the Court’s first opportunity to squarely interpret the Sixteenth Amendment in the age of originalism. The Court granted cert on one question only: whether a provision of the 2017 Tax Cuts and Jobs Act called the Mandatory Repatriation Tax (“MRT”) is a […]
As part of my prep for this year’s ABA Administrative Law Conference, I put a list together of policy documents that have been issued by the Biden Administration as part or (or related to) efforts to modernize regulatory review. While much of the discussion about the Biden Administration’s regulatory approach has focused on, e.g., changes […]
At many law schools, the common law of torts is part of the required first-year curriculum. Yet today, especially in federal court, most cases invoking tort principles—indeed, a large portion of all civil cases—do not deal with battery, trespass, or products liability. Instead, they involve statutory torts. Law schools rarely teach statutory torts, however. I know of at least one […]
With the Supreme Court hearing argument in SEC v. Jarkesy on Wednesday, a lot of focus will be on the three separate constitutional questions presented in the case: The Fifth Circuit answered all three questions in the affirmative, and I would be shocked if the Supreme Court agreed on all three. But it’s quite possible […]
The D.C. Circuit did not publish any opinions for the week of November 20th. There were, however, oral arguments in United States v. Trump, which has been widely covered in the news media, United States v. Kerrick, a criminal sentencing case, and National Security Archive v. CIA, which concerns access to government records and involved […]
On Wednesday, the Supreme Court will hear oral argument in SEC v. Jarkesy, a major constitutional challenge to the future of agency adjudication and enforcement. In an essay forthcoming in the Ohio State Law Journal, David Zaring and I set forth a way for the SEC, Congress, or maybe even the Supreme Court could save […]
Happy Thanksgiving! Here is the October 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 […]
From Matthew Wiener: On November 29, 2023, the Supreme Court will hear argument in Securities and Exchange Commission v. Jarkesy. Perhaps the most important of the three questions presented is whether “the statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment.” A divided panel […]
Based on my personal interactions, most lawyers seem to think little of the nondelegation claim in SEC v. Jarkesy. Even Mr. Jarkesy seems somewhat lukewarm to the nondelegation argument, as it’s discussed in the respondent’s brief for only two pages, which is far less than was devoted to the other two constitutional claims. In this post, I […]
Today’s Ad Law Reading Room entry is “Juristocracy and Administrative Governance: From Benzene to Climate,” by Rachel Rothschild. Here is the abstract: In a series of recent decisions culminating in West Virginia v. EPA, the Supreme Court relied on the newly named “major questions doctrine” to strike down agency regulations that protect public health and […]
We’re still in the quiet period of the term, with just one opinion issued this past week. It’s another holdover from last term (argued over a year ago). I believe there has been only one published opinion released so far for cases actually argued this term – a decision in an NLRB case about bargaining […]
The AALS New Voices in Administrative Law program is seeking several more senior commentators for this year’s session. We had an outstanding response to our call for junior scholar presenters, and are now looking for more senior scholars to join. We’d like to continue our tradition of assigning two experienced scholars to comment on each junior paper. […]
Over at the GW Regulatory Studies Program, Mark Febrizio, Sarah Hay, and Zhoudan (Zoey) Xie have published a comparison of the draft and final Circular A-4 revisions, which were published last week. Here’s the description of the project: Following a public comment period earlier this year, the Office of Information and Regulatory Affairs (OIRA) in the Office […]
My November 8 Yale Journal on Regulation Notice and Comment post on antitrust and sign stealing has generated lots of comments and conversations, ranging from enthusiastic (Michigan fans) to not enthusiastic (others). Some people just want to have fun with it, and that’s fine. The whole sign-stealing “scandal” is a welcome breather from lots of truly awful or […]
2023 ABA Administrative Law Conference November 30, 2023—December 1, 2023 The 2023 ABA Administrative Law Conference is right around the corner! Join us for the fourth annual virtual live event. The ABA Section of Administrative Law and Regulatory Practice will seek 12.5 hours of ONLINE LIVE CLE CREDIT for 8 panels spread over two days. […]