Notice & Comment

Ninth Circuit Review

Notice & Comment

Ninth Circuit Review-Reviewed: Panel Ushers in Pretextual Review under Dept. of Commerce v. New York, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Panel Nixes Rail Reg over Agency Pretext The biggest development last month was the Ninth Circuit’s inaugural application of *pretextual review* as established by the Supreme Court in […]

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Ninth Circuit Review-Reviewed: On Administrative Adjudications, Panel Fires Warning Shot across FTC’s Bow, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. FTC Gets Yellow Card over Post-Lucia Constitutional Concerns  After Free Enterprise Fund and Lucia, the constitutionality of independent agency adjudications became an open question. This legal uncertainty, in turn, engendered a spate of original actions […]

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Ninth Circuit Review-Reviewed: What Is Going on with Preliminary Panels in CA9?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. Preliminary Panels: Politics by Other Means? In normal times, injunctive relief is an “extraordinary remedy.” Over the last four years, by contrast, such relief became routine in the Ninth Circuit. While […]

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Ninth Circuit Review-Reviewed: CA9 Gets Lost in Weeds of APA §§ 702 & 704, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business.  Border Wall Panel Makes Doctrinal Hash of APA Review  One of the 1946 APA’s achievements was to simplify suits against the government. To this end, the Act provides a waiver of […]

Notice & Comment

Ninth Circuit Review-Reviewed: Is CA9’s En Banc Process Driving Disagreement?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of arguably “the second most important court in the land.” Today’s post marks the second anniversary of this series. Let’s get straight to business. CA9’s En Banc Process Is Broken . . .  A major purpose of en banc proceedings is to bring uniformity to appellate law. It is somewhat ironic, therefore, that the Ninth […]

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Ninth Circuit Review-Reviewed: What Will Happen to Four Years’ Worth of Anti-Administrativist Jurisprudence in CA9?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. When Trump Is Gone, Will CA9 Start Abnegating? If you’re an anti-administrativist, it’s been a great four years in CA9. During the Trump-era, the Ninth Circuit filled the Federal Reporter with orders […]

Notice & Comment

Ninth Circuit Review-Reviewed: CA9 Grasps for Reins of the Statutory President, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. CA9 Chooses Wrong Controversy to Grow Judicial Review of President’s Statutory Powers  Courts must set aside agency action that is unreasonable. But when reviewing the president’s statutory powers, courts don’t check […]

Notice & Comment

Ninth Circuit Review-Reviewed: Census Panel Pioneers Pre-decisional, Pretextual Review, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Last month, I was off studying for the bar, which I ultimately didn’t take because I exercised an 11th hour diploma privilege. Let’s get straight to business.  Census Case, Part 1: Final Agency Action?   Department of Commerce v. […]

Notice & Comment

Ninth Circuit Review-Reviewed: Whither the Bend of Law’s Arc in CA9?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. April Was the Cruelest Month (for Law’s Abnegation) Does law’s arc bend steadily toward deference? Or does law invariably bend the knee to value preferences? These questions animate this section.  In late […]

Notice & Comment

Ninth Circuit Review-Reviewed: CA9 Is Broken, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. A Divided Court Cannot Stand Every month, I read at least one indignant—and often incredulous—dissent in a major immigration controversy before the Ninth Circuit. March was no exception.  Early in the […]

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Ninth Circuit Review—Reviewed: Nationwide Preliminary Injunctions before CA9, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month, we’re going to take a deep dive into a hot-button issue: nationwide preliminary injunctions. Let’s get straight to business. Surveying the Schizophrenic Law of the Circuit on Universal PIs   Prior to the Trump-era, august principles of […]

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Ninth Circuit Review-Reviewed: Disarray at the Feeder Circuit for the Supreme Court’s “Shadow Docket”, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to business. The Ninth Circuit’s Shadow Silly Docket Of late, there’s been a lot of talk about the Supreme Court’s sinister sounding “shadow docket”—that is, orders and decisions issued by […]

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Ninth Circuit Review-Reviewed: Even More Standing , by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases. Big Doctrinal Leap on “Competitor’s Standing” Continuing with Aaron’s theme from last Friday, this month’s lead story addresses the doctrinal leap taken by the Ninth Circuit […]

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Ninth Circuit Review-Reviewed: Major Moves Afoot on APA § 704?, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases. The Supreme Court’s Evolving Doctrine on “Jurisdictional Rules” Has Huge Implications for the APA Given that Article III courts have a duty to police their own […]

Notice & Comment

Ninth Circuit Review—Reviewed: A “Hardening Look” Review for the IRS, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases. Altera Part I: IRS Becoming Less Exceptional in Admin Law “IRS exceptionalism” continues its slow bleed. For reasons that escape me, the White House and federal […]