Monthly Archives: January 2018

D.C. Circuit Review – Reviewed: The I-Don’t-Have-Time-To-Read-It-All Version of PHH Corp. v. CFPB

by Aaron Nielson — Wednesday, Jan. 31, 2018@Aaron_L_Nielson

At long last, the en banc D.C. Circuit has decided PHH Corp. v. CFBP. This case — which, of course, we have discussed many times here at Notice & Comment — concerns the constitutionality of the restrictions on the President’s ability to remove the CFPB director (namely, only for “for inefficiency, neglect of duty, or […]

Where to Find Authoritative Guidance on Regulatory Meaning, by Kevin M. Stack

by Guest Blogger — Wednesday, Jan. 31, 2018

When regulated entities or the public want to know what a regulation means, where do they look? They will, of course, focus on the text of the regulation. But what other sources bear on how regulations apply? In particular, what is the most authoritative source agencies issue to assist in determining the meaning and application […]

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2/4 Submission Deadline: ACS’s Richard D. Cudahy Writing Competition on Regulatory and Administrative Law

by Christopher J. Walker — Wednesday, Jan. 31, 2018@chris_j_walker

Each year the American Constitution Society hosts the Richard D. Cudahy Writing Competition in Regulatory and Administrative Law. The list of prior winners is a who’s who in administrative law. Plus there’s a separate student category! The submission deadline of February 4th is quickly approaching. Here are the full details from the ACS website: The American […]

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Are Medicaid work requirements legal?

by Nicholas Bagley — Wednesday, Jan. 31, 2018

That’s the title of a new piece of mine that came out in JAMA this morning. It’s pretty timely: a lawsuit was filed last week challenging CMS’s approval of Kentucky’s waiver, which includes work requirements. More waivers, and more litigation, are sure to come. I’m no fan of work requirements. They’re harsh, stigmatizing, and ineffective. And they will hurt people, […]

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Challenges Agencies Face in Communicating by Guidance, by Nicholas R. Parrillo

by Guest Blogger — Wednesday, Jan. 31, 2018

The most official way for an agency to communicate with the public is through binding legislative rulemaking. But an agency can send out communications much faster, and at higher volume, if it communicates by guidance—that is, by general public statements, nonbinding, giving its current thinking on how it will interpret the law and use its […]

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Involuntary Rulemaking?

by Andy Grewal — Tuesday, Jan. 30, 2018

As the various entries in this Symposium show, agencies enjoy considerable flexibility in determining whether, when, and how to publicly communicate their enforcement priorities and legal interpretations. But sometimes, through statutes like the Freedom of Information Act, an agency may be forced to reveal things that it would otherwise keep out of the public’s eye. For […]

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Administrative Braggadocio, by Michael Herz

by Guest Blogger — Tuesday, Jan. 30, 2018

For a democracy to function even a little bit like it should, the public needs to know what the government is up to. A robust press is one mechanism. FOIA is another. But the most obvious is for the government just to tell the public about its projects and plans. Unfortunately, while the government has […]

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UCLA Law Review Symposium This Friday, 2/2: The Safeguards of Our Constitutional Republic

by Christopher J. Walker — Tuesday, Jan. 30, 2018@chris_j_walker

On Friday, the UCLA Law Review will be hosting a terrific symposium entitled The Safeguards of Our Constitutional Republic. So if you happen to be in Southern California, definitely join us! Here’s the description of the symposium from the law review’s website: We find ourselves today at a political, legal, and cultural crossroad. This past year […]

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Visual Regulation—and Visual Deregulation, by Elizabeth Porter & Kathryn Watts

by Guest Blogger — Monday, Jan. 29, 2018

Historically, rulemaking has been defined by dense text and linear analysis. Yet, during the Obama administration, a colorful new visual rulemaking universe emerged—one that splashed rulemaking-related images, GIFs, and videos across social media channels. Agencies, interested stakeholders, and President Obama himself used sophisticated visual tools to develop and engender support for—or opposition to—high-stakes federal rulemakings. […]

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