In late January 2020, the Trump Administration proposed new regulations to define “controlled by a religious organization” for purposes of religious exemption to Title IX.  The proposed regulations eviscerate the common meaning of control and ignore the grammatical structure of the phrase “by a religious organization.” The new definition would expand the scope of religious […]

This week’s Supreme Court decision in Guerrero-Lasprilla v. Barr does more than subject the Board of Immigration Appeals to broader judicial review over the removal of criminal aliens. It offers clues to Thryv v. Click-to-Call Technologies, an important patent law case that is now before the Court—and that was, in fact, argued the same day […]

Introduction In 2011, researchers found significant disparities in the National Institutes of Health (NIH) funding of minority researchers.  In particular, their study determined that—even after controlling for education, country of origin, training, previous research awards, publication records, and employers—“[B]lack applicants remain 10 percentage points less likely than whites to be awarded NIH research funding.”  This study spurred the […]

The Fed and Treasury are doing absolutely everything they can think up to respond to the coronavirus crisis, and because of the still very flexible Depression era statutory language constraining them doesn’t offer a whole lot of constraint, even after some amendment in Dodd-Frank, it is all just about legal. I want to raise four questions […]

Immigration fuels the engine of corporate America. Fortune 500 corporations routinely recruit talented managers from their offices around the world to work in the United States. Smaller businesses operating in regional markets also rely on immigrant employees, who are willing to fill jobs when the domestic labor market cannot meet demand. Between 25 and 30 percent […]

Deference doctrines such as Chevron and Auer continue to receive criticism from members of the judiciary including members of the Supreme Court. In Kisor, the Supreme Court recently considered whether to overturn Auer and stop deferring to administrative interpretations of their own regulations. Supporters of deference to administrative agencies issued dire warnings that without deference […]

The requirements for notice and comment rulemaking have been well established for decades.  When an agency decides that a new rule should be promulgated, an initial version of that rule is published in the Federal Register.  The public is then invited to comment on it for a period of time, typically 30 or 60 days.  At the end […]

In his forthcoming Hastings Law Journal article, Sticky Regulations and Net Neutrality Restoring Internet Freedom, Aaron Nielson argues, correctly I think, that “[s]tickiness allows regulated parties to invest with greater confidence that they will be able to recoup their investment over the long run – which enhanced investment in turn better allows agencies to pursue […]

The Administrative Law New Scholarship Roundtable was originally scheduled for this coming June 8-9 at Yale Law School.  In light of the uncertainty created by COVID-19, and especially because travel arrangements for the June 8-9 dates would need to be made soon, we as the organizing committee have decided to postpone the event.  We are hopeful that […]

The World Health Organization (WHO) has urged countries to trace and track every COVID 19 case. Tracking the spread of the virus is essential to effective mitigation of this health pandemic. During the ongoing worldwide healthcare crisis, one of the data-driven tools that has been shown to be effective in curbing the spread of this […]

Petitions for certiorari from the Supreme Court typically raise legal questions that are all too familiar, as cert ordinarily is available only to resolve circuit splits. Now and then, however, a case is “cert-worthy” precisely because it turns on something novel—even astonishing. Such is Monex v. Commodity Futures Trading Commission, in which the CFTC has […]

For those who spend much of their time litigating against the Federal Government, the routine invocation of standing, political question, ripeness, and no subject matter jurisdiction are reminiscent of the final words of Claude Rains in Casablanca: “Round up all the usual suspects.” Thus, it was no surprise when the House Judiciary Committee sought to […]

The fate of the CFPB, and potentially of agency independence writ large, hinges on the Supreme Court’s decision in Seila Law v. CFPB, which was argued before the Supreme Court last week. Most of the commentary has focused on how the Court might distinguish the CFPB from other independent agencies like the SEC and FTC, […]

One of the most gratifying features of recent scholarship debating the constitutionality of administrative power has been the resurgence of interest in the founding. Not only critics of administrative power but also its defenders hark back to the Constitution’s early history. One of the most recent such justifications of administrative power in historical terms is […]