Monthly Archives: April 2017

Murphy on Funk on Final Agency Action (AdLaw Bridge Series)

by Chris Walker — Saturday, Apr. 29, 2017@chris_j_walker

Over at Jotwell, Chip Murphy reviews Bill Funk‘s short essay Final Agency Action after Hawkes, which is forthcoming in the New York University Journal of Law and Liberty. Here’s a summary of Funk’s essay from the SSRN abstract: On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co. (Hawkes), […]

The Agency Declaratory Judgment

by Emily Bremer — Saturday, Apr. 29, 2017@emilysbremer

For your weekend reading pleasure, I offer my latest article, The Agency Declaratory Judgment, which is now available on SSRN and is forthcoming in the Ohio State Law Journal.  The article examines a useful provision of the APA with which you may be unfamiliar (really!).  That provision is 5 U.S.C. 554(e).  It states that an agency “with like effect as […]

D.C. Circuit Review – Reviewed: A Collegial-ish Court

by Aaron Nielson — Friday, Apr. 28, 2017@Aaron_L_Nielson

Last September I suggested that those trying to predict the Clean Power Plan outcome by looking at the judges and “counting ‘R’s and ‘D’s” may be in for a surprise. The D.C. Circuit, after all, is serious about its craft and the idea that cases can be predicted this way is — in the words […]

“Everyone seems to agree: Drug prices are too damn high.”

by Nicholas Bagley — Friday, Apr. 28, 2017

So begins a post from Rachel Sachs, Darius Lakdawalla, and me at the Health Affairs Blog on the complicated interplay between value-based pricing and Medicaid’s best-price rule. What is the best-price rule? Does it really impede the adoption of value-based pricing? If so, what can be done about it? To keep federal spending in check, […]

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In Bipartisan Reform of the APA, Is There “Fertile Ground Here to Actually Get Something Done”?

by Adam White — Thursday, Apr. 27, 2017

As Chris noted last night, Senators Portman and Heitkamp introduced legislation to significantly reform and modernize the Administrative Procedure Act of 1946. There is much to be written about this version of the “Regulatory AccountabilityAct,” including its provision for replacing Auer deference with a Skidmore While regulatory reform tends to be construed as a Republican or conservative attack on administrative […]

Uniform Law Commission Acts and Projects

by Brian Lewis — Wednesday, Apr. 26, 2017

Part 1 My name is Brian Lewis and I am Legislative Counsel with the Uniform Law Commission (ULC).  The ULC is a nonprofit entity, formed in 1892, to create nonpartisan state legislation. Commissioners—who are all lawyers—are appointed for a term of service by the individual state governments, the District of Columbia, Puerto Rico, and the […]

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Senators Heitkamp and Portman Introduce New Regulatory Accountability Act

by Chris Walker — Wednesday, Apr. 26, 2017@chris_j_walker

The video of today’s press conference is here, and I’ve pasted below Senator Portman’s press release on the legislation. This is an important and thoughtful proposal to modernize the Administrative Procedure Act, and I will have much more to say about it in the coming weeks (once my Senate academic fellowship concludes). Here’s the press release: […]

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The Opioid Addiction Prevention Act and the Best Distribution of Regulatory Activity over Illicit and Prescription Opioids

by Sam Halabi — Tuesday, Apr. 25, 2017

There is substantial evidence that opioid addiction poses a significant threat to individual and public health in the United States.  The CDC reports that the majority of drug overdose deaths (more than six out of ten) involve an opioid.  Since 1999, the number of overdose deaths involving opioids quadrupled. From 2000 to 2015 more than […]

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Donald Trump’s Enforcement Plan and the Future of Discretion, by Shoba Sivaprasad Wadhia

by Guest Blogger — Tuesday, Apr. 25, 2017

When the Department of Homeland Security makes the choice to refrain from bringing charges against an undocumented person working at a restaurant or to freeze a removal order for a woman who serves as a primary caregiver to her U.S.-citizen children, the agency is favorably exercising “prosecutorial discretion,” which refers to the decision by DHS […]

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Emoluments Clause: Ivanka Edition

by Andy Grewal — Monday, Apr. 24, 2017

Ivanka Trump, the daughter of President Trump, recently changed her position in the White House from informal advisor to unpaid government employee. See CNN (Mar. 29, 2017). Through this change, Ivanka, referred to here by her first name to avoid confusion with her father, became officially subject to various statutory ethics rules. Though the relevant […]

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