Twenty-three years after being resurrected by Mead, Skidmore is seemingly resurgent. As commentators on this blog have noted, the Loper Bright Court’s express references to Skidmore suggest—aside from situations where the “best reading” of a statute is a delegation of interpretive authority—that Skidmore will be the primary test used to evaluate agency statutory interpretation going forward.  But is Skidmore really any different than de novo review? Scholars and […]

When I began experimenting with Lexis+AI in my administrative law research course this past spring, we found it ineffective for questions beyond the C.F.R. For example, asking for a recent IRS private letter ruling kept pulling up rulings from the last century, and no prompt seemed able to come up with EEOC policy documents. Why did […]

In April, we published a short piece in Notice & Comment on 5 key monopolization cases in the tech sector. In it, we presented the results of an informal poll of economists with expertise in antitrust. The poll asked them to rate the strength of the government’s cases by providing both stand-alone ratings and relative ones. Here, we […]

What do Elon Musk, Jamie Leach, Frank Black, and Jeffrey Moats have in common? Elon Musk is fighting the National Labor Relations Board’s (NLRB) power grab. Jamie Leach is fighting to save her company from the whims of the Consumer Product Safety Commission (CPSC). Frank Black is fighting against the Securities and Exchange Commission (SEC) so he can keep working in […]

Reflecting on the litigation over the FTC’s non-compete rule, it struck me that the Supreme Court’s decision in Corner Post is a huge win for the government masquerading as a loss. A key sentence in the opinion should put the last nail in the coffin of universal remedies. If I’m right about this prediction, Corner Post’s implications for […]

More low carbon or green investment is needed to achieve the Paris Agreement’s objective of net-zero emission by 2050. To facilitate such green investment, both public and private funds must flow into emerging green technologies. When examining avenues to nudge corresponding investment in global markets, which in turn impacts trade, it is imperative to turn our attention to Sovereign […]

In a Term full of hard blows to agencies, Corner Post might end up being the hardest. But administrative law allows a remedy that could avert some the decision’s worst potential effects—remand without vacatur.  By holding that the default statute of limitations for an APA suit begins to run when a plaintiff is injured—and not when an […]

On August 26, Special Counsel Jack Smith filed the highly anticipated opening brief in the DOJ’s appeal to resurrect the high-profile classified documents case against former President Donald Trump. This case, once considered the most straightforward of the prosecutions of Trump, was unexpectedly derailed last month when Judge Aileen Cannon dismissed the indictment on constitutional grounds, holding […]

Delegation of regulatory authority from Congress to federal agencies is a foundational principle of modern government. Congress often tasks agencies to address complex problems, and lawmakers combine broad and specific terms to identify the scope of an agency’s authority in effectuating the purpose of a statute. Even when Congress is most precise, the terms in […]

The Supreme Court’s 1971 decision in Citizens to Preserve Overton Park, Inc. v. Volpe is found in every administrative law case book because of its centrality to basic standards for judicial review of agency actions, including those of the Federal Election Commission (FEC). Yet Overton Park rarely arises in lower court opinions. That is not surprising. The case is […]

Federal Trade Commission Chairwoman Lina Khan continues to lose legal battles. Last month, a federal court in New York threw out an FTC lawsuit for the second time, doing so “with prejudice,” which means the FTC is barred from bringing the claim back to court. This loss is the latest in a long string of FTC defeats, […]

Spectrum is the lifeblood of the commercial wireless industry.  Today, spectrum is incredibly scarce as most of the available spectrum is already allocated for assorted uses.  With spectrum in short supply yet in high demand by telecommunications operators, federal policy must focus on identifying bands that can be used more efficiently; this is especially the case as […]

On August 2, 2024, in Texas Medical Association, et al. v. United States Dept. of Health and Human Services, et al. (“Texas Medical”), the Fifth Circuit ruled that the Final Rule promulgated in 2022 by three separate federal agencies under different statutes exceeded statutory authority under the No Surprises Act (“NSA” or “the Act”).     In rendering its […]

Notice & Comment readers have, by now, gotten a range of views on the effect of Loper Bright Enterprises v. Raimondo on administrative agencies’ authority. One thing many agree on, though, is that only time will tell the decision’s true impact. Our organization, Governing for Impact, has released an issue brief offering guidance to policymakers on how to understand […]

A moralist, economist, and lawyer walk into a bar. The economist claims they should lead antitrust inquiries. After all, antitrust is about markets and who knows more about markets than economists? The lawyer scoffs. Economists may know about supply and demand, but they don’t know the first thing about how to design regulations to achieve […]