The Death of the Senate as a Deliberative Body

by Sam Wice — Wednesday, May 2, 2018

When the Senate lowered the threshold for nominees to a simple majority, it kept the 30-hour requirement to overcome a filibuster. While the Republican Senate has been willing to devote 30 hours to overcome filibusters on nominees to more important positions like cabinet secretary and circuit court judge, the floor time has added up quickly. […]

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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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ICYMI: Regulatory Review Series on ACUS’s December 2017 Recommendations

by Emily Bremer — Saturday, Apr. 28, 2018@emilysbremer

In March, The Regulatory Review published an excellent series of opinion essays analyzing the five recommendations that the Administrative Conference of the United States adopted at its last Plenary session, held in December 2017.  I highlighted the new recommendations (and a rare separate statement) when they were published, but The Regulatory Review series delves much deeper.  In […]

Over at Written Description: Ouellette on Walker/Wasserman on PTAB and Administrative Law

by Chris Walker — Friday, Apr. 27, 2018@chris_j_walker

Over at the IP/patent law blog Written Description, Lisa Ouellette has a very thoughtful post on The New World of Agency Adjudication, my new paper with Melissa Wasserman that is forthcoming in the California Law Review next year. Here’s the first and last paragraph: Christopher Walker is a leading administrative law scholar, and Melissa Wasserman‘s excellent work on […]

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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Critiquing Hernandez v. Mesa: Contextual Assessment of Administrative Law’s Potential as an Alternative to Bivens Remedies

by Bernard Bell — Wednesday, Apr. 25, 2018

On June 7, 2010, border patrol agent Jesus Mesa fatally shot Sergio Güereca, a 15–year–old Mexican national.  Güereca was standing near the cement culvert separating the United States and Mexico.  Hernández and several friends had run up the culvert’s embankment on the U.S. side, touched the border fence, and returned to Mexican territory.  Agent Mesa […]

Administrative Law SSRN Reading List, March 2018 Edition

by Chris Walker — Tuesday, Apr. 24, 2018@chris_j_walker

April has been a busy month here at the Notice and Comment blog, with a terrific, two-week symposium organized by my co-blogger Jennifer Mascott on Lucia v. SEC, the constitutional challenge to the appointment of SEC administrative law judges that the Supreme Court heard on Monday. So my monthly SSRN post is coming a bit […]

The Government and the Appointments Clause—Just the Facts

by Jennifer Mascott — Monday, Apr. 23, 2018@jennmascott

Today the Supreme Court will hear argument in Lucia v. SEC about whether Securities and Exchange Commission administrative law judges (ALJs) exercise “significant authority” and thus are subject to the Constitution’s Appointments Clause requirements. The straightforward arguments from the government and the petitioner, showing how ALJs are “officers” under Supreme Court precedent, history, and 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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