How much, if any, deference does a state agency’s guidance deserve? This is an important question of state law, as deference can allow an agency to win even when its legal position is not the best interpretation of the law.[1] Over the past decade, state legislatures,[2] state courts,[3] and the public[4] have begun to grow wary of the […]

As Justice Barrett explained in Biden v. Nebraska, she views the major questions doctrine (“MQD”) a bit differently than her colleagues.  While other justices consider the MQD to be a substantive canon (i.e., a canon of statutory interpretation that promotes a policy norm existing external to a statute), Justice Barrett indicated that she understands the MQD to be […]

This post is the concluding essay by the authors for a symposium published over at the Balkinization blog on the topic of “The Chevron Doctrine through the Lens of Comparative Law.” All of the contributions to the symposium can be found at this link.  Over the past two weeks, the Balkinization blog hosted a wide-ranging symposium about judicial deference to the […]

Please join me in congratulating Professors Nikolas Bowie and Daphna Renan for winning the ABA Administrative Law and Regulatory Practice Section’s 2023 Annual Scholarship Award, which recognizes the best scholarly work published in the field of administrative law during 2022. Their article, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020 (2022), presents an original insight and new […]

In Loper Bright Enterprises v. Raimondo and its companion case Relentless, Inc. v. Department of Commerce, the Supreme Court will decide whether to overrule Chevron deference, narrow it, or leave it be. (Chevron, if any readers of this publication need to be reminded, is the doctrine providing that courts must defer to reasonable agency interpretations of unclear statutes.) Some commentators predict […]

Loper Bright Enterprises v. Raimondo is no longer the only Chevron case that the Supreme Court will consider this term. The Court just granted certiorari in a new case—Relentless, Inc. v. Department of Commerce—that will be argued in tandem with Loper Bright. Alongside resolving a recusal issue, adding Relentless to the mix could impact the way the Court approaches writing its […]

As the Supreme Court prepares to decide the fate of one of its most cited precedents, it will do so without a full slate of Justices. There’s a simple solution sitting in the current batch of petitions at the Court. Earlier this year, the Supreme Court granted a petition for a writ of certiorari in Loper Bright Enterprises, […]

The Northern District of Texas has received a lot of attention lately. But one recent ruling out of that court seems to be getting little notice: Utah v. Walsh. The decision is admittedly dry—it rejected a challenge brought by 26 states’ attorneys general to the Department of Labor’s 2022 Investment Duties Rule, which clarified the duties […]

Lina Khan became famous by writing a student note titled “Amazon’s Antitrust Paradox.”[1] She told a fascinating story about the evil practices of Amazon. She has now increased her fame by filing an antitrust action against Amazon in her role as Chair of the FTC. The FTC’s complaint tells another interesting story about the evil practices […]

With the Senate’s confirmation of Anna Gomez as the fifth member of the Federal Communications Commission, the Democrats finally have their long-awaited 3-2 majority. So FCC Chairman Jessica Rosenworcel didn’t waste any time in initiating a rulemaking proceeding proposing to reimpose “Net Neutrality” regulations on Internet service providers (ISPs) such as Verizon, Comcast, and dozens of others. […]

The law known as the “Little” Tucker Act authorizes federal district courts to entertain small dollar civil claims against the United States, “in cases not sounding in tort.”[1] It also sets out a statute of limitations. As amended, the limitations period provides that “every civil action commenced against the United States shall be barred unless the […]

Supreme Court Justice Brandeis once wrote: “[S]unlight is said to be the best of disinfectants.” As applied to our administrative state, our government best serves the public when it operates in the open. Transparency through public notice of meetings and public participation in the regulatory process is our best tool to hold our public officials accountable. […]

For several decades, the oil and gas industry has been extensively involved in a campaign of climate denial aimed at safeguarding their financial interests and evading regulation. In order to obstruct fossil fuel regulation, the industry has knowingly misled the public and policymakers about its role in the climate crisis. As it turns out, major oil […]