Monthly Archives: August 2016

Founders Meet Brand X, by David Feder

by Guest Blogger — Wednesday, Aug. 31, 2016

[Note from Daniel Hemel: Guest poster David Feder, currently an associate at Munger, Tolles & Olson in Los Angeles and formerly a law clerk to Judge Neil Gorsuch on the Tenth Circuit, has written a thoughtful response to my post last week criticizing Judge Gorsuch’s opinion in Gutierrez-Brizuela v. Lynch. This post reflects the views only […]

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Funk on Sunstein & Vermeule on Auer’s Hour (AdLaw Bridge Series)

by Chris Walker — Monday, Aug. 29, 2016@chris_j_walker

This post will be short, as we will be hosting a terrific online symposium in September on judicial deference to an agency’s interpretation of its own regulations (a.k.a. Auer deference or Seminole Rock deference). We have a terrific line-up, including the three scholars featured in this post. But I wanted to highlight now in the […]

D.C. Circuit Review – Reviewed: Wilco, Trunk Monkey, ThunderCats, Cass Sunstein, Ghostbusters, Katy Perry, Judge Randolph, and Qualified Immunity

by Aaron Nielson — Saturday, Aug. 27, 2016@Aaron_L_Nielson

Reader, no doubt you have come to appreciate just how much nicer the new Notice & Comment looks compared to the old site. (Indeed, the old Notice & Comment looked a lot like this or even this.) To be sure, the transition has not been seamless; I’ve noticed a hiccup now and then. But on […]

Shane on Litman on Standing to Take Care of Federal Law (AdLaw Bridge Series)

by Chris Walker — Saturday, Aug. 27, 2016@chris_j_walker

Earlier this year my Ohio State colleague Peter Shane and I read at our regular “book club” Leah Litman‘s Taking Care of Federal Law, which was published in the Virginia Law Review. This is such a engaging and provocative paper, and I was glad to see Peter review it for Jotwell last month. Here’s a summary of the paper […]

Deference Doctrines Matter

by Chris Walker — Friday, Aug. 26, 2016@chris_j_walker

Over at the Library of Law and Liberty, I had a post yesterday, entitled Do Judicial Deference Doctrines Actually Matter?, on Kent Barnett and my new article Chevron in the Circuit Courts, which is forthcoming in the Michigan Law Review. In that post, I briefly recap the current debate about whether to get rid of, or […]

Federal Agencies as Statutory Drafters (AdLaw Bridge Series)

by Chris Walker — Friday, Aug. 26, 2016@chris_j_walker

I blogged about this project earlier in the year, but I’m excited to report that I finally have a full draft of the article, Legislating in the Shadows, which is forthcoming in the University of Pennsylvania Law Review.  This article documents a previously under-explored yet widespread practice—how agencies confidentially assist Congress in drafting statutes—and then explores […]

When Judges Get Indicted

by Andy Grewal — Thursday, Aug. 25, 2016

Earlier this year, former U.S. Tax Court Judge Diane Kroupa was indicted for conspiracy to commit tax evasion and obstruction of an IRS audit.  During her time on the court, Kroupa authored some significant opinions, including BNY Mellon v. Commissioner, which held that the taxpayer could not properly claim foreign tax credits generated through a […]

The Tenth Circuit vs. Brand X

by Daniel Hemel — Wednesday, Aug. 24, 2016

In the 2005 Brand X decision, the Supreme Court held that “[a] court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet […]

A Sleeper Auer Case

by Andrew Hessick — Tuesday, Aug. 23, 2016@andyhessick

Auer deference — the deference an agency receives when interpreting its own regulations — is one of the most powerful tools for the government in administrative law. But the doctrine has faced increasing criticism. Opponents have argued that the doctrine enables agencies to circumvent procedural safeguards by promulgating vague rules through notice and comment and […]