Monthly Archives: July 2018

Administrative Law SSRN Reading List, June 2018 Edition

by Chris Walker — Wednesday, July 18, 2018@chris_j_walker

This summer the SSRN adlaw working paper series has provided for ample beach reading. June was no exception. Here is the June 2018 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. Regulatory Police by Rory Van Loo (Columbia […]

Lucia, Kokesh, and the Supreme Court’s Not-So-Subtle Hints to the SEC, by Daniel B. Listwa and Charles Seidell

by Guest Blogger — Tuesday, July 17, 2018

When the Supreme Court held in Lucia v. SEC that the Securities and Exchange Commission had appointed its administrative law judges in an unconstitutional manner, the focus among commentators was less on the particular agency at issue and more on the repercussions for the administrative state more generally. But, while it is true that the […]

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Another View of Judge Kavanaugh and “The Artful Dodge”

by Aaron Nielson — Monday, July 16, 2018@Aaron_L_Nielson

It isn’t a compliment to say that a judge “dodged” an issue. After all, to “dodge” is to “evad[e] by sudden bodily movement” — “an artful device to evade, deceive, or trick.” And throwing the word “artful” in front (to the extent it isn’t redundant, as “dodge” already includes “artful”) doesn’t turn it into a […]

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Chevron in the States: Mississippi Update

by Aaron Saiger — Monday, July 16, 2018

Mississippi’s high court announced last month that it will “no longer … give deference to agency interpretations” of their governing statutes.  The case is King v. Mississippi Military Dept.    It’s a tough summer for Chevron in state supreme courts, when you read King in conjunction with Wisconsin’s Tetra Tech, which I discussed two weeks ago. Like […]

“You’re Fired”: Executive Order 13839 and Civil Service Protections

by Bernard Bell — Friday, July 13, 2018

Posts to this blog have justifiably focused on Lucia v. SEC, 138 S.Ct. 2044 (June 21, 2018), the recent Executive Order entitled “Excepting Administrative Law Judges from the Competitive Service,” and the resultant implications for the administrative judiciary’s independence.  But in the meantime, President Trump has issued three executive orders addressing job protections and related […]

Judge Kavanaugh and “Weaponized Administrative Law,” by Daniel Deacon

by Guest Blogger — Wednesday, July 11, 2018

In her recent dissent in Janus v. AFSCME, Justice Kagan accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.”  Judge Kavanaugh, now nominated to fill Justice Kennedy’s seat on the Supreme Court, might be accused of doing the […]

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Will Cost-Benefit Analysis Become the Law of the EPA?, by Jonathan Masur

by Guest Blogger — Wednesday, July 11, 2018

Last month, in a step that received relatively little attention, the EPA issued an Advanced Notice of Proposed Rulemaking soliciting comments on its use of cost-benefit analysis.  As the Notice explains, the EPA is required by a series of executive orders to conduct a cost-benefit analysis (“CBA”) each time it promulgates a major rule.  (For […]

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Raiding the OPM Den: The New Method of ALJ Hiring, by Kent Barnett

by Guest Blogger — Wednesday, July 11, 2018

As Andy Hessick has blogged here, President Trump yesterday issued an executive order (EO) that alters how federal administrative law judges (ALJs) are appointed. Although I am not an expert on the interworking of the federal civil service, my initial impression is that the altered hiring model has benefits, but also potentially serious drawbacks. Under […]