Author Archives: Guest Blogger

Judge Raymond Kethledge and the Separation of Powers, by Charles J. Cooper and G. Ryan Snyder

by Guest Blogger — Monday, June 18, 2018

In recent years, several posts on this blog have analyzed how individual judges on President Trump’s Supreme Court shortlist approach questions of administrative law. (See here and here.) To our knowledge, however, no one has written about one of the leading contenders—Judge Raymond Kethledge. This two-part series attempts to fill that gap. The first post […]

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Skidmore, Not Auer, Deference for Foreign Governments’ Views of Their Own Law, By Jeffrey Lubbers

by Guest Blogger — Friday, June 15, 2018

In my April 9 guest blogpost, “Auer Deference with a Foreign Twist,” I discussed the issues before the Court in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The case involved a federal class action antitrust and price-fixing jury trial verdict for $147 million against two Chinese vitamin C manufacturers that was overturned […]

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The Colorado Baker Opinion Should Not Be Considered an Administrative Law Precedent, by Richard J. Pierce, Jr.

by Guest Blogger — Thursday, June 7, 2018

Masterpiece Cakeshop v. Civil Rights Commission required the Supreme Court to determine the validity of an order issued by the Colorado Civil Rights Commission that required a baker to bake and sell a wedding cake to a gay couple who were exercising the right to marry that the Court conferred on them in Obergefell v. […]

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Finality, Guidance Documents, and San Francisco’s Challenge to a Guidance Repeal, by Alisa Tiwari, Ryan Yeh, and Christine Kwon

by Guest Blogger — Monday, May 21, 2018

San Francisco City Attorney Dennis Herrera filed a lawsuit[i] on April 5, 2018, challenging U.S. Attorney General Jeff Sessions’s repeal of six Department of Justice (DOJ) civil rights guidance documents. The lawsuit argues that Sessions rescinded these civil rights protections for marginalized communities without meaningful explanation, in violation of the Administrative Procedure Act (APA). *** […]

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Context-Specific Seminole Rock Reform, by Aneil Kovvali

by Guest Blogger — Monday, May 21, 2018

Applying deference under Bowles v. Seminole Rock, 325 U.S. 410 (1945), courts have deferred to agency interpretations of agency rules for decades. But a recent concern that the doctrine permits agencies to combine the powers of lawmaking and law interpretation has prompted Congress and the courts to consider reform. In a new Essay, forthcoming in […]

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Trump v. Hawaii: A Run of the Mill Administrative Law Case, by Kathryn E. Kovacs

by Guest Blogger — Thursday, May 3, 2018

The Supreme Court appears to be poised to uphold the so-called Travel Ban at issue in Trump v. Hawaii. At the oral argument, some of the justices seemed concerned about the Court second-guessing an order that came from the President himself and that concerned national security. Neither of those factors, however, should hinder the Court […]

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Accusers as Adjudicators in Agency Enforcement Proceedings, by Andrew N. Vollmer

by Guest Blogger — Tuesday, May 1, 2018

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such […]

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Coping with Chevron: Justice Gorsuch’s Majority and Justice Breyer’s Dissent in SAS Institute, by Nicholas R. Bednar

by Guest Blogger — Wednesday, Apr. 25, 2018

Neither Justice Breyer nor Justice Gorsuch are fond of the “mandatory,” two-step approach to Chevron. Shortly after the D.C. Circuit molded the two-step standard from Justice Stevens’s opinion, then-Judge Breyer argued that a mandatory version of Chevron would result in a “greater abdication of responsibility to interpret the law than seems wise.” Since joining the […]

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Towards a Modern Understanding of “Officers of the United States,” by James A. Heilpern

by Guest Blogger — Sunday, Apr. 22, 2018

On Monday, the Supreme Court will hear oral arguments in the case Lucia v. SEC. The question presented is whether administrative law judges of the Security Exchange Commission should be considered “Officers of the United States” subject to the Appointments Clause of the U.S. Constitution. In a previous post, I suggested that the Court should […]

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A Special Master for the Cohen Case?, by Edward B. Foley

by Guest Blogger — Tuesday, Apr. 17, 2018

As one who has studied the role of impartial institutions for the purpose of resolving electoral disputes—and has advocated the creation of special nonpartisan tribunals in high-profile cases (like Minnesota’s Coleman-Franken recount in 2008)—I wonder whether the appointment of a special master, as Judge Kimba Wood is reportedly considering, is appropriate for the review of the material seized from […]

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