Monthly Archives: December 2018

The Administration’s Recent Guidance on State Innovation Waivers under the Affordable Care Act Likely Violates the Act’s Statutory Guardrails, by Joel McElvain

by Guest Blogger — Tuesday, Dec. 11, 2018

The Affordable Care Act reformed the individual health insurance market to protect persons with pre-existing conditions. Insurers who participate in this market must sell plans with a standard set of comprehensive benefits, and may not deny coverage to, or impose higher premiums on, persons with pre-existing conditions. Through legislative, regulatory, and litigation efforts, the Trump […]

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Walters on Testing Auer Skeptics’ Self-Delegation Hypothesis (AdLaw Bridge Series)

by Chris Walker — Tuesday, Dec. 11, 2018@chris_j_walker

As I noted back in July, the Supreme Court appeared to have a decent vehicle to consider whether to overrule Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” Yesterday the Court granted that […]

CFP: Michigan Law School Fifth Annual Junior Scholars Conference

by Chris Walker — Monday, Dec. 10, 2018@chris_j_walker

The University of Michigan Law School invites junior scholars to attend the 5th Annual Junior Scholars Conference, which will be held on April 26-27, 2019 in Ann Arbor, Michigan. The conference provides junior scholars with a platform to present and discuss their work with peers, and to receive detailed feedback from senior members of the […]

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ABA AdLaw Section Teleforum, 12/18 3PM EST: The Vacancies Act and the Attorney General

by Chris Walker — Monday, Dec. 10, 2018@chris_j_walker

The Vacancies Act and the Attorney General: Constitutional and Statutory Issues Teleconference December 18, 2018 | 3:00 PM – 4 PM EST | Teleconference Is Matt Whitaker legally serving as the Acting Attorney General?In early November, at the request of President Trump, Attorney General Jeff Sessions resigned. Under the Department of Justice’s succession statute, Deputy […]

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Reflections on Seminole Rock — The Complete Online Symposium

by Aaron Nielson — Monday, Dec. 10, 2018@Aaron_L_Nielson

The Supreme Court this morning granted certiorari regarding an important question of administrative law:   In light of this news, it is worth recalling that a couple of years ago, Notice & Comment hosted an online symposium on this very subject. The result is, I believe, the best “law review article” on Seminole Rock/Auer ever […]

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Ninth Circuit Review-Reviewed: Inaugural Edition, by William Yeatman

by Guest Blogger — Sunday, Dec. 9, 2018

In a recent post, Prof. Aaron Nielson noted that Notice & Comment once considered starting a “D.C. Circuit Review–Reviewed-style column for the Ninth Circuit.” This sounded like a great idea to me, so I reached out to the editors and volunteered for the part. Henceforth, on the 9th of every month, I’ll report on the […]

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D.C. Circuit Review – Reviewed: O Christmas Tree!

by Aaron Nielson — Friday, Dec. 7, 2018@Aaron_L_Nielson

This year my family did a crazy thing: We purchased the world’s largest Christmas Tree.* Well, that’s not true — some trees are a bit bigger. Even so, the Nielson Christmas Tree is pretty darn big. To be sure, we didn’t set out to buy Super-Humongous-Giant Tree™. Yet when we arrived at the lot, there […]

A Regulatory Compliance Defense for Data Breach Actions

by Bernard Bell — Thursday, Dec. 6, 2018

Typically, compliance with statute, regulation, or industry custom does not provide a complete defense to tort liability.  The State of Ohio recently adopted legislation, Ohio Substitute Senate Bill 220 (“S.B. 220”)(codified at Ohio Rev. Stat. §§1354.01-.05), to establish a regulatory compliance defense for tort actions seeking recompense for data breaches.  The enrolled legislation and the […]

Law’s Attrition, Virtue’s Abnegation

by Adam White — Tuesday, Dec. 4, 2018

In September, I was one of several scholars invited to give some short remarks on Adrian Vermeule’s controversial and challenging book, Law’s Abnegation, at the Villanova Law School. After I posted my remarks to a personal web site, Professor Chris Walker very kindly invited me to cross-post them here.  ***** Law’s Attrition, Virtue’s Abnegation By […]

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President George H.W. Bush on Civil Service and Civil Society

by Adam White — Monday, Dec. 3, 2018

Amid this week’s many tributes to the late President Bush, readers of Notice & Comment may be particularly interested in the speech that he gave to members of the Senior Executive Service on January 26, 1989 — that is, on just the seventh day of his presidency. It is a stirring call to government service, celebrating […]

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