Does the government have a legal right to tell the banks what they can and cannot do with their own money? The Volcker Rule tries to do just that: banks are not allowed to engage in proprietary trading with their own capital. In this blog, we demonstrate an important justification for the Volcker Rule. Banks […]
Author Archives: Guest Blogger
Reasonable Patent Exhaustion, by Herbert Hovenkamp
A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended with Impression Products v. Lexmark (2017). The Supreme Court held that the sale of a patented thing exhausts the patentee seller’s rights to enforce restrictions on that thing through patent infringement suits. Further, the parties cannot […]
Mashaw and Berke on Presidentialism Versus Pluralism: The Missing Epilogue to Madison’s Nightmare, by Peter M. Shane
The University of Chicago Press surprised me in 2015 with the happy news that they intended to bring out in paperback my 2009 book, Madison’s Nightmare: How Executive Power Threatens American Democracy. A less happy surprise was the press’s lack of interest in my providing an epilogue that would bring the analysis forward through seven […]
Wishful Thinking? Justice Gorsuch and the Future of the Seminole Rock/Auer Deference Doctrine, by Kevin O. Leske
On July 9, Chris Walker posted about the cert petition filed in July in Kisor v. O’Rourke, which presents the question of “whether the Court should overrule Auer and Seminole Rock” – the doctrine that requires courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent […]
Lucia, Kokesh, and the Supreme Court’s Not-So-Subtle Hints to the SEC, by Daniel B. Listwa and Charles Seidell
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 […]
Judge Kavanaugh and “Weaponized Administrative Law,” by Daniel Deacon
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 […]
Will Cost-Benefit Analysis Become the Law of the EPA?, by Jonathan Masur
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 […]
Raiding the OPM Den: The New Method of ALJ Hiring, by Kent Barnett
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 […]
Judge Joan Larsen on Separation of Powers and Administrative Law, by Joseph Mead
Joan Larsen’s name has come up repeatedly as a potential nominee for the Supreme Court. After she learned she was on then-candidate Donald Trump’s list of potential Supreme Court nominees, she even recused from a case involving the election. Now, it seems, the speculation about whether she might be nominated is heating up again. After […]
Textualism in the Trenches: Judge Amul Thapar and the Administrative State, by Ben Beaton
“Do you know Amul Thapar?” That’s a common question this week, as official Washington buzzes about the five (or so) Supreme Court short-listers identified in the wake of Justice Kennedy’s retirement. But it wasn’t common in 2007 when my father-in-law asked about a recent visitor to the Toyota plant where he worked in Georgetown. (No, […]