Now that the grocery giant Kroger has certified its substantial compliance with the Federal Trade Commission’s request for information, the antitrust regulator must decide how to proceed with Kroger’s $24.6 billion acquisition of its rival Albertsons. Kroger happens to be based in Cincinnati, my hometown, where it’s an important part of the corporate base. However, I’m rooting against the […]
On December 5th, the Supreme Court heard oral argument in Moore v. United States, a constitutional challenge to the mandatory repatriation tax (“MRT”) in the 2017 Tax Cuts and Jobs Act. The case raises basic questions about the scope of Congress’s taxing power, and has the potential to reshape and limit federal taxation. (Ben Silver had a nice […]
In a pair of cases set for argument in January, the U.S. Supreme Court has been asked to overrule Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. I’m going to suggest that whether Chevron should be overruled isn’t exactly the right question. That’s because Chevron—at least the part of it that most people are interested in—didn’t make binding […]
Artificial intelligence (AI) is kryptonite to the Rule of Law. Where the Rule of Law demands “clear, general, publicly accessible rules laid down in advance,” advances in AI occur for unknown reasons, at unknown times, and with unknown effects. Where the Rule of Law requires prospective regulation, AI advances faster than the courts and Congress can handle. And, where the Rule of Law cautions against […]
On Tuesday, the Supreme Court will hear oral argument in Moore v. United States, the Court’s first opportunity to squarely interpret the Sixteenth Amendment in the age of originalism. The Court granted cert on one question only: whether a provision of the 2017 Tax Cuts and Jobs Act called the Mandatory Repatriation Tax (“MRT”) is a […]
At many law schools, the common law of torts is part of the required first-year curriculum. Yet today, especially in federal court, most cases invoking tort principles—indeed, a large portion of all civil cases—do not deal with battery, trespass, or products liability. Instead, they involve statutory torts. Law schools rarely teach statutory torts, however. I know of at least one […]
From Matthew Wiener: On November 29, 2023, the Supreme Court will hear argument in Securities and Exchange Commission v. Jarkesy. Perhaps the most important of the three questions presented is whether “the statutory provisions that empower the Securities and Exchange Commission to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment.” A divided panel […]
Based on my personal interactions, most lawyers seem to think little of the nondelegation claim in SEC v. Jarkesy. Even Mr. Jarkesy seems somewhat lukewarm to the nondelegation argument, as it’s discussed in the respondent’s brief for only two pages, which is far less than was devoted to the other two constitutional claims. In this post, I […]
My November 8 Yale Journal on Regulation Notice and Comment post on antitrust and sign stealing has generated lots of comments and conversations, ranging from enthusiastic (Michigan fans) to not enthusiastic (others). Some people just want to have fun with it, and that’s fine. The whole sign-stealing “scandal” is a welcome breather from lots of truly awful or […]
As anyone who follows college football is aware, the University of Michigan is under investigation from the NCAA and Big 10 Conference for “sign stealing”—gathering information on future opponents’ play signals. Given Michigan’s national title aspirations, the potential for sanctions is obviously bad news. Michigan has now fired back with evidence that three other Big 10 teams—Rutgers, […]
How much, if any, deference does a state agency’s guidance deserve? This is an important question of state law, as deference can allow an agency to win even when its legal position is not the best interpretation of the law.[1] Over the past decade, state legislatures,[2] state courts,[3] and the public[4] have begun to grow wary of the […]
As Justice Barrett explained in Biden v. Nebraska, she views the major questions doctrine (“MQD”) a bit differently than her colleagues. While other justices consider the MQD to be a substantive canon (i.e., a canon of statutory interpretation that promotes a policy norm existing external to a statute), Justice Barrett indicated that she understands the MQD to be […]
This post is the concluding essay by the authors for a symposium published over at the Balkinization blog on the topic of “The Chevron Doctrine through the Lens of Comparative Law.” All of the contributions to the symposium can be found at this link. Over the past two weeks, the Balkinization blog hosted a wide-ranging symposium about judicial deference to the […]
Please join me in congratulating Professors Nikolas Bowie and Daphna Renan for winning the ABA Administrative Law and Regulatory Practice Section’s 2023 Annual Scholarship Award, which recognizes the best scholarly work published in the field of administrative law during 2022. Their article, The Separation-of-Powers Counterrevolution, 131 Yale L.J. 2020 (2022), presents an original insight and new […]
In Loper Bright Enterprises v. Raimondo and its companion case Relentless, Inc. v. Department of Commerce, the Supreme Court will decide whether to overrule Chevron deference, narrow it, or leave it be. (Chevron, if any readers of this publication need to be reminded, is the doctrine providing that courts must defer to reasonable agency interpretations of unclear statutes.) Some commentators predict […]