As I blogged about back in February, the Hastings Law Journal hosted a terrific live symposium on February 21st (the last time I traveled anywhere outside central Ohio for work) on Administrative Law in the Age of Trump. The law journal editors were absolutely fantastic, and the print issue from that symposium has now been […]
In his forthcoming Hastings Law Journal article, Sticky Regulations and Net Neutrality Restoring Internet Freedom, Aaron Nielson argues, correctly I think, that “[s]tickiness allows regulated parties to invest with greater confidence that they will be able to recoup their investment over the long run – which enhanced investment in turn better allows agencies to pursue […]
The D.C. Circuit today is in Utah! In about an hour, Judges Garland, Griffith, and Rao will visit BYU Law (where I teach) to judge the law school’s annual Rex E. Lee Moot Court Competition Finals. That doesn’t happen every day.* Because my day will be spent hosting, this post will be quick. But have […]
A year ago I wrote a post called Standing. In that post, I suggested that “the law professors suing President Trump about the Emoluments Clause ‘pretty clearly lack Article III standing.’” Well, today, we learned for a fact that the members of Congress who sued President Trump about the Emoluments Clause lack standing. Here is how the […]
The D.C. Circuit released its opinion in Mozilla v. FCC, which largely upheld the Federal Communications Commission’s (FCC’s) Restoring Internet Freedom order, on October 1, 2019. Much of the ensuing commentary and policy debate will no doubt center on the fact that the court upheld the substance of the order but struck down the provision […]
If you follow the D.C. Circuit, you have probably already read the Court’s (latest) “net neutrality” decision, or at least heard about it. When big cases come along, my goal is to come up with something new to say. That often isn’t easy to do. But I try. For instance, after the D.C. Circuit’s 2016 […]
This Term, in Gundy v. United States, the Supreme Court once again considered whether a statutory grant of authority (here, under the Sex Sex Offender Registration and Notification Act) to a federal agency or executive branch official (here, the Attorney General) violates the nondelegation doctrine. As students of administrative law know, the Court has interpreted […]
The House of Representatives on Wednesday passed the Save the Internet Act of 2019. In broad strokes, the bill would restore the Obama-era FCC’s order that classified Internet service providers as “telecommunications carriers” subject to regulation under Title II of the Communications Act and imposed a set of net neutrality rules on ISPs pursuant to […]
This was a quiet week in the D.C. Circuit — that is, unless you follow the FCC. If you are an FCC aficionado, today is a very big day. So big, in fact, that the Court issued special instructions, including: And some more: Yes, today is the “net neutrality” argument at the D.C. Circuit. This […]
As January began, the government was out of money. Therefore its lawyers filed numerous extraneous motions seeking relief they likely did not want and that they knew would be denied. Wait, what? Like many tech law junkies, I have been eagerly anticipating the February 1 oral argument in the net neutrality appeal. But as the […]
In her recent dissent in Janus v. AFSCME, Justice Kagan accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Judge Kavanaugh, now nominated to fill Justice Kennedy’s seat on the Supreme Court, might be accused of doing the […]
When President Obama nominated Chief Judge Garland to the Supreme Court, I put together a list of his dissents and concurrences. As I explained then: President Trump has just nominated Judge Brett Kavanaugh to the Supreme Court. With the help of two hard-working research assistants* I’ve put together a similar list for him. Note that […]
You may have noticed that Notice & Comment has hosted a series of posts highlighting the administrative law views of several judges on President Trump’s list of potential Supreme Court nominees. In light of this week’s big news (and no, we aren’t talking about the D.C. Circuit’s Revised Bills of Costs), it’s time for D.C. […]
Over at Truth on the Market, Gus Hurwitz thoughtfully enters the debate between Philip Hamburger and me (here and here) regarding the role of Chevron deference in constraining partisanship in judicial decisionmaking. This debate builds on findings from Administrative Law’s Political Dynamics, my latest paper with Kent Barnett and Christina Boyd from our Chevron in the circuit courts dataset. […]
On December 14, 2017, the Federal Communications Commission voted to repeal its Obama-Era net neutrality rules. The day before the vote, FCC Chair Ajit Pai appeared in a humorous and unconventional “Harlem Shake” video produced by the Daily Caller, a conservative website. In the video, entitled “7 Things You Can Still Do After Net Neutrality,” […]