From cancer-causing talc in baby powder to defective ear plugs sold to the military, to sexual assault in the Catholic Church, bankruptcy courts are increasingly becoming the default venue for mass torts.  Scholars have sharply debated whether bankruptcy courts are the right venue to decide questions of accountability, to apportion blame, and to set compensation for victims of large-scale corporate wrongdoing.  On the […]

As we all await the next administrative law earthquake from the Supreme Court, it may be worth taking stock of just how much the ground has already shifted. In our new article, Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules, we provide this analysis. Using a novel dataset […]

On June 6, 2024, the United States Supreme Court held in Connelly v. United States that life-insurance proceeds earmarked by a corporation for redemption of a deceased shareholder’s stock must be included when valuing the corporation for estate-tax purposes.  This is a major blow for closely held business succession planning and denies estates a potentially […]

On September 29, 2023, shortly after the FTC filed its complaint alleging that Amazon is illegally monopolizing the market for online sales of goods, I wrote a blog in Notice and Comment titled FTC v. Amazon Should Be Khan v. Khan. I began by noting that FTC Chair Khan had obtained her initial notoriety by […]

Clear statement rules are having a moment at the Supreme Court. Recently, in Harrow v. Department of Defense, the Court held that a statutory deadline for an appeal from a Merit Systems Protection Board ruling was non-jurisdictional. In its unanimous ruling, the Court applied a “clear statement rule”: Congress must speak clearly if it means […]

On April 23, 2024, the FTC finalized a trade regulation rule prohibiting employers from enforcing non-compete agreements against workers. In response, business groups sued and Daniel Crane, a law professor at the University of Michigan, published a piece in Notice and Comment that reported on the views of 17 anonymous online volunteers regarding the fate […]

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the […]

Last week, several business groups including the National Federation of Independent Businesses filed a lawsuit seeking to invalidate one of the Department of Labor’s top priorities: a final rule issued in April that updates the Fair Labor Standards Act’s (FLSA) overtime salary thresholds to ensure that millions more workers are eligible for extra pay if […]

On two occasions, the majority opinion in CFPB v. Community Financial made clear that it was tasked with answering only a “narrow” question concerning the requirements imposed by the Appropriations Clause.  Slip Op. at 1, 5.  The Court’s answer to that narrow question was relatively straightforward: the Appropriations Clause requires no more than “a law […]

Administrative law is almost certain to undergo monumental change during the Supreme Court’s current Term.  On May 16, 2024, the Court issued its first in a series of blockbuster administrative law decisions: Consumer Financial Protection Bureau v. Community Financial Services Ass’n. The Court’s 7-2 decision declaring the Bureau’s funding structure constitutional brings good news for […]

Soon after the Supreme Court decided West Virginia v. Environmental Protection Agency, we wrote a short analysis outlining the major questions doctrine as laid out by the Court. Our piece was not rocket science. We simply summarized the majority’s test for determining whether an agency’s legal interpretation triggers the doctrine. But as we expected, many […]

As the Supreme Court ponders what to do with Chevron in Loper Bright Enterprises v. Raimondo and Relentless Inc., et al. v. Department of Commerce, Idaho’s Simplot test might provide a way to keep but cabin deference. In 1991, in J.R. Simplot Co. v. Idaho State Tax Comm’n, the Idaho Supreme Court crafted a unique […]

As we await the Supreme Court’s decisions in Relentless and Loper Bright, left-leaning scholars and activists have bemoaned the demise of Chevron deference as harmful to progressive values. But this is not true in at least one area of law: banking. Where Congress enacted incredibly progressive statutes, courts granted Chevron deference to regulators’ interpretations in […]

On April 23, 2024, the FTC voted 3-2 to adopt a final rule prohibiting non-compete agreements in employment contracts. The two Republican Commissioners dissented on a variety of grounds, including that the FTC does not have substantive rulemaking authority under Section 6g of the FTC Act, the major questions doctrine, that the rule is arbitrary […]