On April 11, 2025, the NYU Law Review and the Institute for Policy Integrity at NYU School of Law will host a full-day symposium that will explore Where Does Administrative Law Go from Here? The symposium will feature a keynote address from Ricky Revesz, currently the Administrator of the Office of Information and Regulatory Affairs and […]
Every administrative law student knows that a private litigant challenging an agency action must first establish an injury-in-fact. But in addition, the zone-of-interests test further requires that the litigant’s interest be “arguably within the zone of interests to be protected or regulated by the statute.” Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 […]
Next month, the Fourth Circuit will consider a legal argument that could help patch the hole ripped open by the Supreme Court in SEC v. Jarkesy. Jarkesy held that agencies seeking to impose monetary penalties on enforcement targets for securities fraud and other common law-ish claims must proceed in federal court, not their own administrative forums. The Fourth […]
The Supreme Court’s landmark decision in Ohio v. American Express (Amex) remains central to the enforcement of antitrust laws involving digital markets. The decision established a framework to assess business conduct involving transactional, multisided platforms from both an economic and legal perspective. At its crux, the Court in Amex integrated both the relevant market and […]
Universal remedies are hot, and a number of scholars have weighed in on the specific question of whether the Administrative Procedure Act authorizes a separate remedy of vacatur (sometimes called “universal vacatur”). The leading contributions so far are by, in alphabetical order, Adler, Bamzai, Bremer, Harrison (x2, x3), Levin, Mizelle, and Sohoni (x2). At the […]
As the presidential election approaches, the Committee on Foreign Investment in the United States (“CFIUS”) has increasingly come into the public spotlight. CFIUS, an interagency committee chaired by the Secretary of the Treasury, reviews the potential national security risks of certain foreign investments. At CFIUS’ recommendation, the President may suspend, prohibit, or unwind transactions that threaten […]
The Northern District of Texas just declared two federal statutes unconstitutional—in part on Commerce Clause grounds. The government has appealed to the Fifth Circuit. And if the case proceeds to decision on appeal, the Fifth Circuit will have an opportunity to issue one of the most consequential appellate decisions in the modern era on the reach of […]
Please join me in congratulating Professors Neal Devins and David E. Lewis for winning the ABA Administrative Law and Regulatory Practice Section’s 2024 Annual Scholarship Award, which recognizes the best scholarly work published in the field of administrative law during 2023. Our selection process was rigorous. The committee examined numerous articles and books published during […]
In Loper Bright v. Raimondo, the Supreme Court ruled that Section 706 of the Administrative Procedure Act (APA) prohibits courts from deferring under Chevron v. NRDC to agency interpretations of statutes. What, if anything, does that holding mean for the deference courts give agency interpretations of regulations under Auer v. Robbins? On one reading of Loper Bright, Auer is no longer good law. That’s because both Auer and Chevron require courts to defer […]
The Supreme Court decision in Loper Bright, which overruled the Chevron precedent that courts will defer to reasonable agency interpretations of law, has caused no small measure of controversy. Indeed, the decision has been the subject of political invective along party political lines, with Democrats in particular criticizing the decision. In this note we cannot hope to quell such criticisms, […]
Twenty-three years after being resurrected by Mead, Skidmore is seemingly resurgent. As commentators on this blog have noted, the Loper Bright Court’s express references to Skidmore suggest—aside from situations where the “best reading” of a statute is a delegation of interpretive authority—that Skidmore will be the primary test used to evaluate agency statutory interpretation going forward. But is Skidmore really any different than de novo review? Scholars and […]
When I began experimenting with Lexis+AI in my administrative law research course this past spring, we found it ineffective for questions beyond the C.F.R. For example, asking for a recent IRS private letter ruling kept pulling up rulings from the last century, and no prompt seemed able to come up with EEOC policy documents. Why did […]
In April, we published a short piece in Notice & Comment on 5 key monopolization cases in the tech sector. In it, we presented the results of an informal poll of economists with expertise in antitrust. The poll asked them to rate the strength of the government’s cases by providing both stand-alone ratings and relative ones. Here, we […]
What do Elon Musk, Jamie Leach, Frank Black, and Jeffrey Moats have in common? Elon Musk is fighting the National Labor Relations Board’s (NLRB) power grab. Jamie Leach is fighting to save her company from the whims of the Consumer Product Safety Commission (CPSC). Frank Black is fighting against the Securities and Exchange Commission (SEC) so he can keep working in […]
Reflecting on the litigation over the FTC’s non-compete rule, it struck me that the Supreme Court’s decision in Corner Post is a huge win for the government masquerading as a loss. A key sentence in the opinion should put the last nail in the coffin of universal remedies. If I’m right about this prediction, Corner Post’s implications for […]