For a half-century, cost-benefit analysis has been a mainstay of the regulatory state. Presidents of both parties have either promulgated or retained executive orders mandating regulatory cost-benefit analysis. Many have sought to expand its scope. While so much about regulatory law and policy polarizes the two parties, cost-benefit analysis finds support among Republicans and Democrats alike. […]
How should courts review the president’s statutory powers? It’s one of the most vexing questions in administrative law. It’s easiest to state the problem by comparing the president and agencies as delegees of legislative authority. Usually, Congress delegates regulatory authority to administrative agencies. Sometimes, however, Congress delegates directly to the president. Here, each is an […]
Later this month the Supreme Court will hear First Amendment challenges to two state laws that regulate the content policies of large social media platforms. NetChoice v. Paxton involves a 2021 Texas statute that makes it unlawful for platforms to restrict content based on “viewpoint.” Moody v. NetChoice, meanwhile, involves a 2021 Florida law that prohibits most moderation of […]
I. Introduction The recent Supreme Court oral arguments in Loper Bright and Relentless demonstrate the potential dire public health consequences of overruling the Chevron doctrine. The Food and Drug Administration (FDA) relies on broad judicial deference granted by Chevron, with the primary goal of utilizing scientific and clinical expertise to protect the health and safety of the public. Through implementation of the Federal […]
If one has enough resolve, one should always be able to find “ascertainable standards” embedded in a regulatory statue. Ascertainable standards are both (1) policy objectives that the regulatory agency must use in its decision-making, including rulemaking, and (2) what a reviewing court will use when determining if the agency has acted in an “arbitrary and […]
In a recent article, FCC Commissioners Brendan Carr and Nathan Simington interpreted constitutional protections of Texas Law HB20. They describe social media platforms as “dominant” with “market power,” similar to the appellate courts and parties in the NetChoice cases.[1] As economists, my colleagues and I filed an amicus brief in support of neither party in these cases to clarify these economic […]
With the Supreme Court hearing arguments in Garland v. Cargill this term, the Court has been asked to decide the narrow question of whether a bump stock device is a “machinegun” as defined in the National Firearms Act.[1] However, embedded within the case is an issue that raises broad administrative law questions about how the rule of lenity […]
The ABA Section of Administrative Law and Regulatory Practice is seeking nominations for leadership positions on our governing council. Please help us continue our legacy by nominating brilliant thoughtful lawyers with diverse views, perspectives, backgrounds, and roles in the field of administrative law. A nomination can be as simple as a few sentences. That said, […]
Next month, the Supreme Court will hear arguments in constitutional challenges to a pair of laws from Florida and Texas that would force social media sites to disseminate a wide range of third-party speech that they do not wish to carry. FCC Commissioners Brendan Carr and Nathan Simington have written a defense of Texas’s law, HB20, which would require certain […]
The parties’ briefing in Loper Bright and Relentless[1] has utterly ignored statutory sections—and one section in particular—that are crucial for understanding both why the government should lose these cases and, more importantly, why the Chevron doctrine[2] cannot and should not survive in an era of textualism. The relevant statute—the Magnuson-Stevens Fishery Conservation and Management Act—superficially appears complex and hard to understand. […]
In times of crisis such as the 2008 financial crisis and the 2020 COVID-19 pandemic central banks throughout the world engage in interventions with lasting effects on financial markets and the macroeconomy, for better and worse. The negative political consequences of these interventions—fears of politicizing central banking and inflationary concerns about dramatic interventions among them—can dampen […]
In a series of recent opinions, the Supreme Court has threatened to transform the nondelegation doctrine into a device for imposing sweeping limits on congressional authority to empower the regulatory state. But, as a matter of history and logic, the nondelegation doctrine has a quite different purpose. This Article argues that the nondelegation doctrine plays […]
The challenge of financial inclusion is among the most intractable policy problems in banking. Despite living in the world’s wealthiest economy, many Americans are shut out of the financial system. Five percent of American households lack a bank account, and an additional thirteen percent rely on expensive and sometimes predatory fringe financial services, such as check cashers […]
The United States has delegated the responsibility of keeping the lights on to a self-regulatory organization called the North American Electric Reliability Corporation (NERC). Although NERC is a crucial example of industry-led governance—and regulates in an area that is central to our economy and basic human survival—this unusual institution has received scant attention from policymakers and scholars. Such attention […]
So-called passive index funds—investment funds that are designed to track a pre-specified underlying index—have become a dominant force in the investing landscape, collectively controlling over $12 trillion in assets. It is widely assumed that these funds are obligated to follow their underlying index, and that fund managers cannot, or do not, select portfolios that deviate […]