Monthly Archives: October 2018

Administrative Law SSRN Reading List, September 2018 Edition

by Chris Walker — Wednesday, Oct. 31, 2018@chris_j_walker

October has been a busy month, with the annual ABA Administrative Law Conference starting tomorrow.  So I’m just now posting the September 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. This is a terrific selection of new […]

Judges Shouldn’t Have the Power to Halt Laws Nationwide

by Nicholas Bagley — Wednesday, Oct. 31, 2018

That’s the headline to an article of mine, co-authored with Sam Bray of Notre Dame Law School and published today in The Atlantic. We highlight the disquieting possibility that a single district court in Texas might soon enter an injunction prohibiting the enforcement of all or part of the Affordable Care Act across the entire […]

This entry was tagged .

Mandating Drug Price Transparency (Part II)

by Bernard Bell — Tuesday, Oct. 30, 2018

Drug prices have captured political leaders’ attention.  See, e.g., Robert Pear, Big Pharma’s Nightmare: Trump Crossing the Aisle to Curb Drug Prices, N.Y.TIMES A23 (Oct. 21, 2018); Robert Langreth, Quicktake: Drug Prices, BLOOMBERG (Jan. 25, 2016)(updated May 11, 2018).  On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) took a modest step […]

How Democrats Can Oppose the Republicans Only Judicial Hearings

by Sam Wice — Tuesday, Oct. 30, 2018

Even though the U.S. Senate is on recess, Senate Republicans held hearings on judicial nominees, which only Senate Republicans attended. Senate Democrats opposed the hearings as an attempt to prevent serious questioning of the nominees. Unlike the Brett Kavanagh nomination, Senate Democrats have several ways to prevent most of the nominees from being confirmed. First, […]

This entry was tagged .

A Day in the Life of an Administrative Law Nerd, by Kathryn E. Kovacs

by Guest Blogger — Monday, Oct. 29, 2018

When my conference was canceled, I rejoiced. A free day in Washington, D.C.! The last time I was in Washington, an unprecedented windstorm foiled my plans. This time, hurricane Florence was bearing down on the Carolinas, but it turned away from Washington. It was meant to be: a day at the National Archives and the […]

This entry was tagged .

Mandating Drug Price Transparency (Part I)

by Bernard Bell — Sunday, Oct. 28, 2018

On October 11, 2018, the Centers for Medicare and Medicaid Services (“CMS”) proposed a requirement that direct-to-consumer (DTC) television advertisements for prescription drugs or biological products (“biologics”) include the product’s “list price.” Regulation to Require Drug Pricing Transparency, 52 Fed. Reg. 52789 (Oct. 18, 2018).  The “Regulation to Require Drug Pricing Transparency,” 42 C.F.R. §§403.1200 to […]

Fallout from Lucia – Radioactive?, by William Funk

by Guest Blogger — Wednesday, Oct. 24, 2018

Readers of Notice & Comment are undoubtedly familiar with Lucia v. Securities and Exchange Commission, in which the Supreme Court held that Administrative Law Judges (ALJs) in the SEC were inferior officers, not employees. As a result, they had to be appointed in accordance with the Appointments Clause of the Constitution. In relevant part, that […]

This entry was tagged .

Bad Faith and the Record Rule, Richard J. Pierce, Jr.

by Guest Blogger — Wednesday, Oct. 24, 2018

There has been a recent explosion of disputes in which the Supreme Court must decide when there is evidence of bad faith that is powerful enough to justify a reviewing court’s decision to allow a petitioner to rely on extra-record evidence or to develop extra-record evidence as part of the basis for review of an […]

This entry was tagged .

Oh SNAP!: A Battle Over “Food Stamp” Redemption Data That May Radically Reshape FOIA Exemption 4 (Part IV)

by Bernard Bell — Monday, Oct. 22, 2018

This post concludes a four-part series prompted by the Supreme Court’s stay of the Eighth Circuit’s mandate in Food Marketing Institute v. Argus Leader Media, 889 F.3d 914 (2018).  The first four posts (available here, here, here, and here) addressed the Food Marketing Institute’ frontal assault on the National Parks test for identifying “confidential” commercial […]