Notice & Comment

Author: Jeff Pojanowski

Notice & Comment

Justice Ginsburg in Encino

The administrative law professoriate is abuzz about the Supreme Court’s recent opinion in Encino Motorcars, LLC v. Naravrro . The 6-2 majority vacated and remanded the 9th Circuit’s rejection of a challenge to a Department of Labor regulation that would have entitled certain car dealership employees to overtime pay. Legal academics and administrative lawyers presently […]

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A Socratic Dialogue Inspired by “Marbury and the Administrative State”

Recently, I have been writing about Chevron because that, it appears, is what stereotypical administrative law professors do. In the course of doing so, and in the course of considering justifications for Chevron doctrine, I have been thinking about Professor Henry Monaghan’s classical defense of judicial deference to administrative interpretations of law: “ Marbury and […]

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Deference’s Discontents

I’d like to chip in with some quick thoughts on recent, skeptical rumblings in the Court about deference to administrative agencies. What interests me most here is not the arguments separate Justices are making against deference—they are not new to administrative law thinking, though their return to judicial discussion is more novel. Rather, I’m wondering […]

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Reining in Regulation or Delegation?

Greetings from the frozen tundra of Northern Indiana! As a new Congress gets set to work, administrative law aficionados are focusing on the Regulatory Accountability Act (“RAA”), which would substantially amend the Administrative Procedure Act. The bill passed the House with a vote of 250-175 and the President is threatening to veto it on the […]

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On “On Doctrines That Do Many Things”

Last month, UCLA law professor Sam Bray posted his essay, “On Doctrines That Do Many Things.” The essay does not address administrative or regulatory law directly, but it is well worth the read and certainly worth blogging about here for a few reasons. First, the essay is a sadly neglected genre of legal scholarship. There […]

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Absurdity and Uncertainty (Part I)

The Supreme Court’s recent grant in King v. Burwell has generated a lot of heat, and varying amounts of light, among the legal commentariat. There, the Court agreed to review the 4th Circuit’s rejection of the claim that the text of the Affordable Care Act precludes subsidies for health exchanges established by the federal government, […]

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More on Agency Interpretations of Regulations: Taking Deference Seriously

Last week I posted about the Supreme Court’s upcoming cases addressing whether agencies must go through notice-and-comment rulemaking to change previous interpretations of their own regulations. The D.C. Circuit, in its Paralyzed Veterans line of cases, holds that an agency must, reasoning that the agency’s change modifies legal obligations. The bulk of circuit courts, and […]

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Clarifying the Grand Bargain

This is not (yet) the promised elaboration my thoughts on non-delegation and complexity last week, but rather a clarification and response to Chris’s thoughtful engagement with it. It’s clear that I should have been clearer about what I was suggesting. Chris (reasonably) interprets my post as calling for a jettisoning of the non-delegation doctrine along […]

Notice & Comment

Delegation and Complexity in Administrative Law

Greetings! My name is Jeff Pojanowski and I am excited to be a regular contributor on Notice and Comment. I am an Associate Professor at Notre Dame Law School, teaching and writing in administrative law, statutory interpretation, and legal theory more generally. My first post is inspired by two readings: (1) Phillip Hamburger’s book Is […]