Author Archives: Guest Blogger

Fair Notice and the CFPB:  The Other Constitutional Ruling in PHH v. CFPB, by Joseph Palmore & Bryan Leitch

by Guest Blogger — Monday, Feb. 12, 2018

This month’s en banc D.C. Circuit decision in PHH Corp. v. CFPB has understandably received widespread attention for upholding the constitutionality of the CFPB’s structure in the face of a separation-of-powers challenge.  But somewhat hidden within the hundreds of pages of separate opinions in PHH was another constitutional ruling—one on which the CFPB lost and […]

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Walking the Judicial-Administrative Line, by Daniel B. Listwa

by Guest Blogger — Saturday, Feb. 10, 2018

The line between a court and an administrative agency is fuzzy—but two cases this Term suggest that the Justices have an appetite for making it at least somewhat sharper. A couple of weeks ago, the Court heard Dalmazzi v. Unites States, a case in which the Justices made the unusual move of granting the motion […]

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How Agencies Communicate: Wrapping-Up, by Susan Morse and Leigh Osofsky

by Guest Blogger — Friday, Feb. 2, 2018

The Administrative Procedure Act and the question of judicial deference to agency action may be at the center of the typical Ad Law course syllabus. But they are far from the main topics in the story of How Agencies Communicate uncovered in this symposium. Rather than studiously following the notice and comment process to produce […]

Interim-Final or Temporary Regulations: Playing Fast and Loose with the Rules (Sometimes), by Kristin E. Hickman

by Guest Blogger — Thursday, Feb. 1, 2018

In administrative law doctrine, much significance is placed not only on what agencies say but on the format they use to say it. Interpretations of statutes expressed in legislative rules carry the force of law—i.e., are legally binding on private parties—so must comply with Administrative Procedure Act (APA) notice and comment requirements and usually are […]

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Where to Find Authoritative Guidance on Regulatory Meaning, by Kevin M. Stack

by Guest Blogger — Wednesday, Jan. 31, 2018

When regulated entities or the public want to know what a regulation means, where do they look? They will, of course, focus on the text of the regulation. But what other sources bear on how regulations apply? In particular, what is the most authoritative source agencies issue to assist in determining the meaning and application […]

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Challenges Agencies Face in Communicating by Guidance, by Nicholas R. Parrillo

by Guest Blogger — Wednesday, Jan. 31, 2018

The most official way for an agency to communicate with the public is through binding legislative rulemaking. But an agency can send out communications much faster, and at higher volume, if it communicates by guidance—that is, by general public statements, nonbinding, giving its current thinking on how it will interpret the law and use its […]

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Administrative Braggadocio, by Michael Herz

by Guest Blogger — Tuesday, Jan. 30, 2018

For a democracy to function even a little bit like it should, the public needs to know what the government is up to. A robust press is one mechanism. FOIA is another. But the most obvious is for the government just to tell the public about its projects and plans. Unfortunately, while the government has […]

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Visual Regulation—and Visual Deregulation, by Elizabeth Porter & Kathryn Watts

by Guest Blogger — Monday, Jan. 29, 2018

Historically, rulemaking has been defined by dense text and linear analysis. Yet, during the Obama administration, a colorful new visual rulemaking universe emerged—one that splashed rulemaking-related images, GIFs, and videos across social media channels. Agencies, interested stakeholders, and President Obama himself used sophisticated visual tools to develop and engender support for—or opposition to—high-stakes federal rulemakings. […]

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What Actually Happened in Chevron, by Richard J. Pierce, Jr.

by Guest Blogger — Tuesday, Jan. 23, 2018

Over the last few years, the debate over the Supreme Court’s 1984 opinion in NRDC v. Chevron has morphed from a debate among academics to a near hysterical debate among politicians and pundits who have never read the Court’s opinion and know nothing about the dispute that led to the Court’s opinion. In an effort […]