Six years after the Supreme Court took on the question in Gundy v. United States, 588 U.S. 128 (2019), of when, if ever, Congress has unconstitutionally delegated legislative power to the executive branch, the Court will try again to articulate a standard that a majority of the Court can accept. The case is FCC v. […]
Loper Bright Enterprises v. Raimondo, of course, overruled Chevron v. NRDC, ending judicial deference to administrative agencies conferred by ambiguous statutory language. The opinion also acknowledged that in many statutory provisions, Congress delegates discretionary authority to administrative agencies. If so, agencies rather than courts have primary responsibility for interpreting the statutory language. Professor Chris Walker has called […]
Read Part I here, Part II here, and Part III here. Congress abdicates its responsibility by relying on the courts to enforce bureaucratic oversight. The received antidotes to the administrative state—workforce reduction, ending judicial deference to agency interpretations of statutes, or demanding Congress write unambiguous laws—are hardly new; they have been recommended for as long […]
Read Part I here and Part II here. Special interests hold power in the administrative state. Political scientists and legal scholars suggest the administrative state exists because as policy problems became more complex, Congress needed to develop expertise within the executive branch to not only understand the economic and technological changes in the postbellum American […]
Read Part I here. Arbitrary bureaucratic power is at its highest when agencies determine the scope of their own jurisdiction, but jurisdiction protects the special interests influencing the bureaucracy. A brief illustration of real-world issues demonstrates what I mean by agency “jurisdiction.” Example 1 Medical testing laboratory LabMD helped physicians diagnose prostate cancer. An employee […]
Criticisms abound of a bloated, unaccountable, arbitrary, and abusive federal bureaucracy. But what if the way in which the critics have lambasted the administrative state is misconceived? The critics have ideas about potential antidotes: changing how the courts review administrative actions, increasing congressional capacity for oversight, terminating wasteful spending programs, and, above all else, increasing […]
There’s probably not a communications or administrative lawyer or scholar alive today who is not familiar with the decades-old “net neutrality” saga. Well, due to the Court of Appeals for the Sixth Circuit’s decision in Ohio Telecom Association v. FCC on January 2, the saga, mercifully, may be coming to an end. With no need for more […]
Whether it is PayPal, Venmo, Cash App, or something else, most Americans have used one or more payment platforms. These platforms are usually “viewed as offering a relatively fast, easy, secure, and affordable way of making and receiving retail payments.” Soon, the payment platform marketplace may grow a bit more crowded. In a blog post from January […]
This Article identifies the problem of “antitrust abandonment”: a pattern of long-term, unexplained disuse of antitrust-like enforcement powers held by industry regulators. Much of antitrust scholarship focuses on the primary federal enforcers, the Federal Trade Commission (FTC) and the Department of Justice (DOJ). This Article looks instead at several other federal agencies that hold statutory […]
A paradigm shift is afoot at major federal consumer protection agencies. For four decades, a bipartisan bloc of bureaucrats has seen the purpose of consumer protection as promoting informed consumer choice or “consumer sovereignty.” The idea was that informed consumers in competitive markets would protect themselves by choosing among sellers. Ensuring access to information would […]
This Article describes the constitutional history of public utility regulation to make sense of apparent puzzles and inconsistencies in modern administrative law. In chronicling this history, we first show that utilities’ special constitutional right to challenge regulations on substantive-due-process grounds is based on a public-private distinction that courts have otherwise rejected. Second, we argue that […]
Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and […]
Corporate law has taken a contractarian turn. Shareholders are increasingly contracting around its foundational rules—statutory rights, the fiduciary duty of loyalty, even the central role of the board—and Delaware courts are increasingly enforcing these contracts. In the one case where they did not, the legislature swiftly overruled the decision and adopted a new statutory provision […]
Founders and other corporate insiders often seek to control the companies they take public. For over a century, they have used high-vote stock to obtain disproportionate control rights, which has resulted in seemingly endless debate among scholars, investors, and regulators. More recently, insider shareholders have used a different mechanism to obtain outsized corporate control rights: […]
The False Claims Act’s qui tam provisions, authorizing private parties or relators to sue on behalf of the U.S. government, have faced renewed constitutional challenges despite record recoveries. Within the past two years, three Supreme Court Justices suggested qui tam may violate Article II of the Constitution, and a district court dismissed a qui tam […]