Monthly Archives: November 2015

More on Regulatory Severability

by Andy Grewal — Sunday, Nov. 29, 2015

In my prior post, I mused on the potential severability analysis for tax regulations that a court declared invalid. I noted that courts do not perform severability analysis when (for example) invalidating subsection (d) of a particular tax regulation and instead set aside only the particular regulatory language relevant to the taxpayer’s tax liability. My […]

D.C. Circuit Review – Reviewed: Black Monday

by Aaron Nielson — Sunday, Nov. 29, 2015@Aaron_L_Nielson

This week was a quiet one at the D.C. Circuit — just two cases, neither of which involves “admin law.”* The Thanksgiving holiday undoubtedly played a role. Thanksgiving, however, prompts a thought. With all the talk of Black Friday, my mind turned to one of the most important days in the history of administrative law: […]

D.C. Circuit Review – Reviewed: Clerking, D.C. Circuit Edition

by Aaron Nielson — Saturday, Nov. 21, 2015@Aaron_L_Nielson

Law clerks, of course, vow to keep confidential “any information [they] receive through [their] clerkship that is not part of the public record.” Even so, this announcement should be safe: D.C. Circuit law clerks are terrible at basketball. Each year, the D.C. Circuit clerks play a game of basketball against the Supreme Court clerks. In my […]

Severability of Agency Regulations

by Andy Grewal — Wednesday, Nov. 18, 2015

When Congress passes an Act, and a court finds a portion of it unconstitutional, questions of “severability” arise. That is, the court will consider whether it should strike the entire law, under the theory that without the constitutionally offensive portion, Congress would not never have passed the Act. I’ve been wondering whether this type of […]

Blog Merger Announcement: the Yale Journal on Regulation and the ABA Section of Administrative Law & Regulatory Practice Join Forces

by Guest Blogger — Wednesday, Nov. 18, 2015

WASHINGTON (October 29, 2015) – The ABA Section of Administrative Law and Regulatory Practice (Adlaw Section) announced the official merger of the Section’s blog, Notice and Comment, with the Yale Journal on Regulation (JREG) blog (also called Notice and Comment) at its 2015 Fall Administrative Law Conference. The new blog will combine contributors from both […]

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Lots of wellness programs violate the Americans with Disabilities Act

by Nicholas Bagley — Tuesday, Nov. 17, 2015

Workplace wellness programs discriminate. That’s what they do. Employees who adhere to a wellness program pay less for their coverage; those who don’t pay more. Wellness programs thus clash with federal rules that generally require employers to treat their employees even-handedly, regardless of health status. The Affordable Care Act makes an exception, however, for wellness-based […]

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An Open Letter to 2Ls: Clerkship Season

by Aaron Nielson — Tuesday, Nov. 17, 2015@Aaron_L_Nielson

Dear 2Ls, If you hope to clerk for a federal judge after graduation, pay careful attention. Some judges hire clerks during the first semester of the 2L year—or sometimes earlier. Others begin looking at applications after first semester grades are released and law review boards turn over; based on anecdotal information, this may be the […]

Stack (and Nou) on Regulatory Interpretation (AdLaw Bridge Series)

by Christopher J. Walker — Monday, Nov. 16, 2015@chris_j_walker

Last week the Michigan Law Review published in its online companion a short essay of mine—entitled Inside Regulatory Interpretation: A Research Note—which responds to Kevin Stack’s seminal article on regulatory interpretation Interpreting Regulations. Like Anne O’Connell’s article I reviewed for Jotwell earlier this month, Professor Stack’s article was chosen by the American Bar Association as […]

D.C. Circuit Review – Reviewed: Of Dogs and Lions, Heads and Tails

by Aaron Nielson — Saturday, Nov. 14, 2015@Aaron_L_Nielson

Pluto is a dog; Goofy is a dog. Pluto scampers about in the buff with only a slobbery femur to chew on; Goofy wears comfortable clothes and manages a moderately expensive restaurant. This, of course, is not a novel observation about “cartoon doghood,“ but it does illustrate a principle: not all dogs are created equal. […]

The Real OIRA: Inside White House Reg Review

by Aaron Nielson — Saturday, Nov. 14, 2015@Aaron_L_Nielson

Each morning, lawyers everywhere do certain things. We brush our teeth; take a shower; get dressed; check our email and the headlines; have a bite to eat; exchange pleasantries with loved ones, co-workers, or both; and then read the Notice & Comment blog. (Well, at least we all should do these things ….) I followed […]