Author Archives: Guest Blogger

Judicial Review Encourages Better Economic Analysis at the SEC, by Jerry Ellig

by Guest Blogger — Tuesday, Mar. 21, 2017

One of the most controversial aspects of comprehensive regulatory reform is the potential role of courts in reviewing agencies’ Regulatory Impact Analysis or other similar economic analysis that informs regulatory decisions. The Securities and Exchange Commission provides a useful case study on the effects of such judicial review. The commission’s chief economist and general counsel […]

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Gorsuch’s Tech Law Record Raises Concerns, by Mark Grabowski

by Guest Blogger — Monday, Mar. 20, 2017

Editor’s Note: Professor Grabowski has written a longer essay on this piece in the Yale Journal on Regulation Bulletin. You can access it here! Cell phone privacy, network neutrality and encryption are some of the many tech-related issues that Neil Gorsuch could rule on if he’s successfully appointed to the U.S. Supreme Court. Gorsuch “needs to get tech,” writes Wired‘s Issie […]

How Secretary Price Could Get His CBO Estimate of All Three Prongs of Republican Health Care Reform, by Sam Wice

by Guest Blogger — Wednesday, Mar. 15, 2017

The Congressional Budget Office (CBO) would likely be able to alleviate Secretary Price’s concerns about the recent CBO of the American Health Care Act if Republicans produced their comprehensive proposal for reforming Obamacare. In Monday’s CBO estimate of the American Health Care Act, CBO estimated that 24 million Americans would have health insurance and premiums […]

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Taming the Shallow State, by Jennifer Nou

by Guest Blogger — Tuesday, Feb. 28, 2017

The gloves have now come off in the battle between President Trump and an increasingly alarmed federal bureaucracy. EPA employees are in the streets. The National Park Service is sending out insubordinate tweets. Intelligence agencies are not just leaking, they’re gushing. Bureaucratic resistance is, of course, not new. But what does seem unprecedented is the […]

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Disrupting Immigration Sovereignty, by Jill E. Family

by Guest Blogger — Tuesday, Feb. 14, 2017

It is time to rethink legal and popular notions of immigration sovereignty. In the 19th Century, the Supreme Court depicted immigration as a threat to national sovereignty. It did so to support its conclusion that the political branches (Congress and the President) had extra-constitutional power over certain aspects of immigration law. In explaining why the […]

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New Yale JREG Online Essay: No Country for Cybersecurity Arbitrage, by Eli Greenbaum

by Guest Blogger — Sunday, Feb. 12, 2017

Anti-circumvention technologies were most probably not high on President Trump’s mind when he withdrew the United States as a signatory to the Trans-Pacific Partnership (TPP) last month. The TPP, as with a number of other multilateral and bilateral treaties to which the United States is a party, includes prohibitions on the circumvention of “effective technological […]

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Musings on EO 13771’s Impact on ‘Off-Balance Sheet’ Regulations, by Erin Noakes

by Guest Blogger — Thursday, Feb. 9, 2017

Agencies have long known that the formal promulgation of rules is a regimented process, involving codification of requirements and consideration of public comments. The natural curb on agency evasion of this onerous process is the potential threat of lawsuits under the APA, but EO 13771 generates another, possibly more stringent curb.   The Jan. 30, […]

Despite Republican Warnings, 24/7 Sessions Are Unlikely, by Sam Wice

by Guest Blogger — Wednesday, Feb. 8, 2017

Despite recent Republican warnings that the Senate will work 24/7 to overcome Democratic delay tactics, Republicans are unlikely to execute that strategy.  Floor time is the most valuable resource that Senate Republicans have and they have a number of pressing issues.  Senate Republicans only have limited time to use the Congressional Review Act and its […]

EPA/DOJ’s Volkswagen Settlement: A Strange Constitutional Creature, by William Yeatman

by Guest Blogger — Tuesday, Feb. 7, 2017

In a previous post on Notice & Comment, I argued that the Obama administration leveraged a judicial settlement with Volkswagen to circumvent the Congress’s power of the purse. In this post, I argue that the same settlement also infringes on President Trump’s Article II authority.   Here’s the backstory. In 2011, President Obama announced his administration’s […]

The Deep Incoherence of Trump’s Executive Order on Regulation, by Jonathan S. Masur

by Guest Blogger — Tuesday, Feb. 7, 2017

President Trump’s “Executive Order on Reducing Regulation and Controlling Regulatory Costs” has received a fair amount of attention for its “2-for-1” formula: if an agency wishes to promulgate a new regulation, it must “identify at least two existing regulations to be repealed.” But there is an additional requirement built into the executive order that has […]