*This post is part of a symposium on Modernizing Regulatory Review. For other posts in the series, click here. I’m going to focus on OMB’s proposed revisions to Circular A-4’s section on “alternative regulatory approaches,” which is housed at what would be section 6 of the revised Circular. First, some background. To do cost-benefit analysis—or any other […]
Today’s Ad Law Reading Room features “Delegating Information Oversight” by Professor Margaret Kwoka, which is forthcoming in the Georgetown Law Journal. Here is the abstract: The right to access government information is a foundational element of a democratic society, protected in the United States by the Freedom of Information Act, or FOIA. But agencies cannot […]
Today’s Ad Law Reading Room entry is “Administrative Subordination” by Professor Bijal Shah, which is forthcoming in the University of Chicago Law Review. Here is the abstract: Much of the work on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable marginalized people as a result of individualized bias or arbitrariness in administration. […]
Today, Ad Law Reading Room brings you “Power Corrupts” by Professor Emily Bremer. Here is the abstract: Administrative agencies bear principal responsibility for keeping the federal government’s promises by giving effect in the real world to the laws Congress enacts. If administrative law’s goal was to help agencies fulfill this responsibility, its lodestar would be […]
Today’s Ad Law Reading Room entry is “Legitimizing Agencies” by Professor Brian Feinstein, which is forthcoming in the University of Chicago Law Review. Here is the abstract: The project of bolstering the administrative state’s perceived legitimacy is central to administrative law. To enhance agencies’ legitimacy with the public, generations of judges and scholars have variously […]
Welcome back to the Ad Law Reading Room, where we highlight recent scholarship in administrative law and related fields. Today’s entry is “Becoming the Administrator-in-Chief: Myers and the Progressive Presidency” by Professors Andrea Katz and Noah Rosenblum, which is forthcoming in the Columbia Law Review. Here is the abstract: In a series of recent cases, […]
Welcome to the Ad Law Reading Room, a new series here at Notice and Comment that will highlight recent scholarship in administrative law and related fields. Today’s article is “Executive Capture of Agency Decisionmaking” by Professor Allison M. Whelan, which was recently published by the Vanderbilt Law Review and posted to SSRN. Here is the […]
As readers are no doubt aware, last week the Supreme Court invalidated the Trump administration’s rescission of the DACA program. In this post, I want to examine an argument that seemed not to matter to the decision, though arguably the Chief Justice implicitly rejected it. The argument holds that an agency can rescind (or decline […]
The House of Representatives on Wednesday passed the Save the Internet Act of 2019. In broad strokes, the bill would restore the Obama-era FCC’s order that classified Internet service providers as “telecommunications carriers” subject to regulation under Title II of the Communications Act and imposed a set of net neutrality rules on ISPs pursuant to […]
In her recent dissent in Janus v. AFSCME, Justice Kagan accused the majority of “weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” Judge Kavanaugh, now nominated to fill Justice Kennedy’s seat on the Supreme Court, might be accused of doing the […]
Back in February 2015, in the same meeting at which the FCC reclassified broadband providers as Title II common carriers, the Commission also approved an order preempting certain state laws restricting municipal broadband providers. In June, the D.C. Circuit upheld the Commission’s Title II reclassification. Yesterday, the Sixth Circuit vacated the muni broadband order. A […]
I wanted to follow up on Aaron Nielson’s great post about the D.C. Circuit’s long-awaited net neutrality opinion with a couple of related thoughts. (I saw, as I was writing this post, that Professor Daniel Lyons also has a post up on the Volokh Conspiracy touching on similar points.) For one, it’s interesting how Judge […]
When I first came across the name Merrick Garland it was not in the context of his role as a judge on the D.C. Circuit. Rather, the Merrick Garland I came across while researching my student Note was the author of Deregulation and Judicial Review, 98 Harv. L. Rev. 505 (1985). Published when Garland was […]
Last week, the Federal Communications Commission announced that it would soon release an NPRM on consumer privacy. According to the Commission’s “fact sheet,” the Notice will propose a number of requirements on broadband Internet Service Providers, including an obligation not to share customer information with non-affiliated services without first obtaining the customer’s express consent. I […]
As Chris Walker noted recently on Twitter, the latest issue of the Administrative Law Review was kind to Notice and Comment bloggers. My own contribution has to do with a new basis for the FCC’s jurisdiction over Internet Protocol-based networks and services. And that basis is not Title II of the Communications Act, which has […]