Controversies over the appropriate allocations of policymaking authority between the federal and state governments are almost as old as the Republic, as the Supreme Court pointed out in a 1992 decision involving the distribution of authority over radioactive waste disposal. Yet, the disputes never seem fully resolved. Certainly that is true of environmental regulation, as […]
Author Archives: Guest Blogger
ACUS and Best Practices for Agency Guidance, by Jeremy Graboyes and Todd Phillips
As Aaron Nielson posted Wednesday, President Trump issued two new executive orders this week that impact the use of guidance by executive agencies. Taken together, the EOs seek to ensure the “transparent” and “fair” use of guidance documents by requiring agencies to: (a) develop procedures for issuing guidance documents; (b) provide reasonable notice and easy […]
Repo in Turmoil: The Curious Case of the Missing Reserves, by Marcelo M. Prates
During the week of September 16, 2019, a little-noticed corner of the financial markets came under severe stress. In times of ultra-low interest rates, rates in the repo market spiked to nearly 10%. Repo, in this case, means “repurchase agreement,” a fairly safe lending operation, in which money is exchanged for highly-rated securities and exchanged […]
The Authors Respond, by JoAnne Yates and Craig N. Murphy
Pierre Larouche is right, but it is not just legal scholars: almost everyone who encounters the vast (but rarely noticed) world of private standard setting ends up like the blind men and the elephant of the fable. Most scholars of standardization, and even standards setters themselves, can only describe those parts with which they have […]
Implications of Mozilla for Agency Economic Analysis, by Jerry Ellig
The D.C. Circuit released its opinion in Mozilla v. FCC, which largely upheld the Federal Communications Commission’s (FCC’s) Restoring Internet Freedom order, on October 1, 2019. Much of the ensuing commentary and policy debate will no doubt center on the fact that the court upheld the substance of the order but struck down the provision […]
Guidance Is Unkillable, by David Zaring
The two anti-guidance executive orders reflect a promise kept to industry, which has vociferously complained about enforcement on the basis of guidance. The campaign against guidance made some progress at DOJ with a 2017 memo issued by the Attorney General designed to “end,” at least as a press release put it, the “practice of regulation […]
A Reply to Bray’s Response to The Lost History of the “Universal” Injunction, by Mila Sohoni
In Multiple Chancellors, Professor Bray argued that federal courts should give only a “plaintiff-protective injunction, enjoining the defendant’s conduct only with respect to the plaintiff,” “[n]o matter how important the question and how important the value of uniformity,” with respect to federal defendants. (MC, p. 420; p. 424 (noting that this rule would “logically apply” […]
The New Executive Orders on Guidance: Initial Reactions, by Nicholas R. Parrillo
Following up on Aaron Nielson’s post: The White House yesterday issued two executive orders relating to agency guidance documents. The first is titled Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents, which I’ll call the Guidance EO. The second is titled Promoting the Rule of Law Through Transparency and Fairness […]
Ninth Circuit Review-Reviewed: Does Step One Allow for a Spectrum of Ambiguity?, by William Yeatman
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases. Isn’t Textual Ambiguity a “Yes” or “No” Question? In Kisor v. Wilkie, the Supreme Court purportedly upheld the Auer doctrine of judicial respect for an agency’s […]
Private Standards and Public Governance, by Cary Coglianese
Law is often thought to provide the bedrock of order in modern society. But as important as law can be, social and economic order also emerges from a host of non-legal norms and non-governmental institutions. In their new book, JoAnne Yates and Craig Murphy trace the history of non-legal institutions dedicated expressly to producing order: […]