Author Archives: Chris Walker

Over at SCOTUSblog: Kavanaugh on Administrative Law and Separation of Powers

by Chris Walker — Thursday, July 26, 2018@chris_j_walker

Over at SCOTUSblog, I have a post today examining Judge Kavanaugh’s administrative law jurisprudence and his potential impact on administrative law and regulatory practice if he were to fill Justice Kennedy’s seat on the Supreme Court. Here’s a snippet (of a nearly 4,000-word post): In reviewing Kavanaugh’s robust record on administrative law, I find myself […]

Nearly Four Months After His Death, Judge Reinhardt Casts the Deciding Vote in an Important Tax Exceptionalism Case: Altera v. Commissioner of Internal Revenue

by Chris Walker — Tuesday, July 24, 2018@chris_j_walker

[8/7/2018 Update: In an order issued today by a Ninth Circuit three-judge panel where Judge Graber has replaced Judge Reinhardt, the newly constituted panel states that “[t]he Opinions filed July 24, 2018, are hereby withdrawn to allow time for the reconstituted panel to confer on this appeal.”] Today the Ninth Circuit issued a 2-1 decision in a […]

Administrative Law SSRN Reading List, June 2018 Edition

by Chris Walker — Wednesday, July 18, 2018@chris_j_walker

This summer the SSRN adlaw working paper series has provided for ample beach reading. June was no exception. Here is the June 2018 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. Regulatory Police by Rory Van Loo (Columbia […]

New Supreme Court Cert Petition to Overrule Auer Deference: Kisor v. O’Rourke

by Chris Walker — Monday, July 9, 2018@chris_j_walker

Here at Notice and Comment two years ago, we did an online symposium on the future of Auer (aka Seminole Rock) deference — the doctrine that commands courts to defer to a federal agency’s interpretation of its own regulation unless the agency’s interpretation is “plainly erroneous or inconsistent with the regulation.” In recent years, as I detail […]

Trump’s 2018 Supreme Court Shortlist and Their Views on Administrative Law

by Chris Walker — Wednesday, July 4, 2018@chris_j_walker

President Trump has announced that next Monday, July 9th, he will nominate someone to fill the Supreme Court vacancy left by Justice Kennedy’s retirement last week. According to David Lat, who is arguably the best source on judicial nominations in the Trump Administration, President Trump has interviewed four candidates so far. Here at the Notice […]

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Administrative Law’s Ordinary Remand Rule: In re Negusie Edition

by Chris Walker — Monday, July 2, 2018@chris_j_walker

When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). The Supreme Court arguably first articulated this ordinary remand rule in the Chenery decisions in the 1940s. As I explore elsewhere, the Court […]

Administrative Law SSRN Reading List, May 2018 Edition

by Chris Walker — Monday, June 25, 2018@chris_j_walker

Here is the May 2018 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. There’s a lot of new scholarship on this list, adding signficantly to my summer reading list: Petitioning and the Making of the Administrative State by […]

Gorsuch’s “Clear Enough” & Kennedy’s Anti-“Reflexive Deference”: Two Potential Limits on Chevron Deference

by Chris Walker — Friday, June 22, 2018@chris_j_walker

The headline administrative law opinion coming out of the Supreme Court yesterday was no doubt Justice Kagan’s opinion for the Court in Lucia v. SEC, which held that administrative law judges at the SEC are (at least inferior) officers under the Appointments Clause and thus unconstitutionally appointed by agency officials who are not the head of […]

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Over at Truth on the Market: G Hurwitz on Chevron and the Politicization of Law (or, Chevron Step Three)

by Chris Walker — Monday, June 4, 2018@chris_j_walker

Over at Truth on the Market, Gus Hurwitz thoughtfully enters the debate between Philip Hamburger and me (here and here) regarding the role of Chevron deference in constraining partisanship in judicial decisionmaking. This debate builds on findings from Administrative Law’s Political Dynamics, my latest paper with Kent Barnett and Christina Boyd from our Chevron in the circuit courts dataset. […]

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