In a recent post, Nicholas Bagley reported on the latest challenge to the Affordable Care Act. On February 26th, twenty states filed a lawsuit alleging that the individual mandate is unconstitutional. Right away, you might be wondering about two questions: Didn’t Congress repeal the individual mandate in the Tax Cuts and Jobs Act back in […]
Regulation by litigation has been the dominant regulatory modality in U.S. corporate law for over a century. But that model is in crisis. The shareholder suit, the trigger of the state law-dominated, fiduciary duty-based model of regulation, has been drawn into disrepute. The crisis is most apparent in merger suits, which have been brought against […]
Tax specialists normally don’t focus on financial stability and financial regulators and analysts typically do not focus on taxes. This is too bad because the corporate tax structure affects financial stability and does so significantly, as we analyze in this article. The reason is simple: tax rules influence the capital structure choices of corporations in […]
I have adapted this post from a forthcoming law review article that will appear in the Administrative Law Review this September entitled When Text and Policy Conflict: Internal Whistleblowing Under the Shadow of Dodd-Frank. You can view the article here. Background After the economic meltdown following the 2008 financial crisis, Congress enacted the Dodd-Frank Wall […]
The Freedom of Information Act (“FOIA”) makes “agency records” available to the public upon request, but leaves the term “agency record” undefined. In Forsham v. Harris, 445 U.S. 169 (1980), the Supreme Court ruled that FOIA did not reach documents created and held by government contractors. Later, in U.S. Dep’t of Justice v. Tax Analysts, […]
There are a number of ways to be unhappy about the federal administrative state we have today. One is straightforwardly libertarian. The administrative state allows substantial, systematic interference with private ordering in a way that Congress, acting alone could not (and should not even try). Another way to be unhappy about the federal administrative state […]
Jon Michaels’ imaginative, insightful book portrays the administrative state in a new and thought-provoking light. He argues that the modern arrangement of agency leaders, civil servants, and civil society—“the administrative separation of powers”—recreates the internally rivalrous, tripartite structure that he sees as central to the federal constitutional design. And he makes an impassioned call that […]
This week, the Notice and Comment blog is hosting a web symposium on Jon Michaels’s book, Constitutional Coup: Privatization’s Threat to the American Republic. In the years leading up to this book, Michaels, who is a Professor of Law at UCLA Law School, has written extensively and thoughtfully on administrative law, constitutional structure, and the […]
The publication of a landmark treatise on the Data Quality Act (DQA, aka the Information Quality Act or IQA) is timely because there is a substantial increase in its use by NGOs. Future litigants, whether plaintifs or a defendants, now have an arsenal previously unavailable to them to use as a reference guide when they take […]
Anyone interested in preserving the independence of Administrative Law Judges (ALJs) should be alarmed at Solicitor General Neal Francisco’s brief (nominally) on behalf of the SEC in the case pending at the Supreme Court, Raymond J. Lucia Petitioners v. The Securities and Exchange Commission. I say “nominally” because the front page of the brief itself […]
This month’s en banc D.C. Circuit decision in PHH Corp. v. CFPB has understandably received widespread attention for upholding the constitutionality of the CFPB’s structure in the face of a separation-of-powers challenge. But somewhat hidden within the hundreds of pages of separate opinions in PHH was another constitutional ruling—one on which the CFPB lost and […]
The line between a court and an administrative agency is fuzzy—but two cases this Term suggest that the Justices have an appetite for making it at least somewhat sharper. A couple of weeks ago, the Court heard Dalmazzi v. Unites States, a case in which the Justices made the unusual move of granting the motion […]
The Administrative Procedure Act and the question of judicial deference to agency action may be at the center of the typical Ad Law course syllabus. But they are far from the main topics in the story of How Agencies Communicate uncovered in this symposium. Rather than studiously following the notice and comment process to produce […]
In administrative law doctrine, much significance is placed not only on what agencies say but on the format they use to say it. Interpretations of statutes expressed in legislative rules carry the force of law—i.e., are legally binding on private parties—so must comply with Administrative Procedure Act (APA) notice and comment requirements and usually are […]
The most official way for an agency to communicate with the public is through binding legislative rulemaking. But an agency can send out communications much faster, and at higher volume, if it communicates by guidance—that is, by general public statements, nonbinding, giving its current thinking on how it will interpret the law and use its […]