I haven’t counted but I suspect — with the possible exception of symposium weeks — that this week has been the busiest in the history of Notice & Comment. We have had posts aplenty about the CFPB. There was a mini-debate about whether Chenery II poses a threat to liberty (Richard Pierce says “never,” I […]
A draft of my latest paper — Optimal Ossification — is now available. It will be published next spring in the George Washington Law Review’s annual administrative law issue.* Here is the abstract: One of the dirtiest words in administrative law is “ossification”—the term used for the notion that procedural requirements force agencies to spend […]
It appears my post from last week was not as clear as I had hoped. I hate when that happens! In particular, I don’t think Professor Richard Pierce — who literally wrote the book on administrative law — and I disagree all that much. Yet he says “the threat to liberty McGahn and Nielson ascribe […]
Steve Calabresi “nearly broke the internet” with his remarks last week at the Federalist Society National Lawyers Convention. But something else was said at the Convention — with less fanfare — that strikes me as more significant. The speaker? White House Counsel Don McGahn. The subject? The two Chenery cases. Here is what McGahn said*: […]
Who is the most scholarly of them all? I was tempted to take this week off. After all, why blog about the D.C. Circuit when an actual D.C. Circuit judge is already blogging here? You can learn a lot more about the D.C. Circuit from Judge Williams than from me! But then I read this […]
Every year the Harvard Law Review publishes its Foreword — a prominent scholar’s take on the Supreme Court’s latest term and the law generally. This year’s author is Gillian Metzger, a giant of administrative law. And her article is quite provocative — 1930s Redux: The Administrative State Under Siege. Here is the first sentence: “Eighty […]
Note: Another quiet week in the D.C. Circuit. This week’s post will be short — especially because I’m traveling. This week the D.C. Circuit formally announced an interesting policy: “Earlier this year, the Court agreed to provide live audio streaming of arguments upon request in an individual case if the panel assigned to the case […]
Note: This was a quiet week in the D.C. Circuit — just one nine-page opinion,* and it is about FOIA. This week’s post, accordingly, will be short. This year I’ve spent a lot of time thinking about agency waivers. Why? Well, because I was commissioned to prepare a report on them for the Administrative Conference […]
I’m pleased to announce that the Administrative Conference of the United States has recently posted a report I was commissioned to author. The report “draws conceptual distinctions among waivers, exemptions, and prosecutorial discretion; examines current practices in agencies that grant waivers and exemptions; reviews statutory and doctrinal requirements; and makes concrete procedural recommendations for implementing […]
This was a remarkable week in the D.C. Circuit — and, frankly, a confusing one. Here is a very quick version of the backstory (though if you’re reading this post, you already know it). Last week, Judge Kavanaugh (joined in the order by Judge Henderson) heard an emergency appeal and concluded in a short order […]
In a perfect world, each edition of D.C. Circuit Review–Reviewed would have an obvious theme, some common denominator to tie the week’s events together. Sometimes it is easy to find such a theme; when more than one case invokes the Bible, it is pretty easy to know what I’ll write about. Sometimes, alas, no theme […]
This is an interesting time in the D.C. Circuit. Last night, the Trump Administration likely mooted the House of Representatives v. Burwell/Price/Wright litigation. Last week, the Department of Justice sought rehearing en banc in Allina Health Services v. Price/Wright. The Trump Administration has also begun the process of undoing the Obama Administration’s Clean Power Plan, […]
My first CD was Tom Petty & the Heartbreakers’ Greatest Hits — perhaps the greatest CD of all time (and I’m only half kidding). I was 13 years old and listened to that disc about 800 million times. Soon thereafter I signed up with Columbia House to get 8 CDs for a penny and quickly […]
The D.C. Circuit did a noteworthy yet routine thing this week — it denied rehearing en banc in Wrenn v. District of Columbia, the Court’s recent Second Amendment case. No judge even called for a vote. Why is this “noteworthy”? Because Wrenn addressed a constitutional issue and the panel opinion prompted a dissent. So why […]
I was on Twitter yesterday* and ran across a familiar clarification in a tweet about the District of Columbia Court of Appeals: Note that this is D.C.’s equivalent of a state supreme court– it’s *not* the federal D.C. circuit. — Orin Kerr (@OrinKerr) September 21, 2017 Which was followed by this tweet: D.C. Cir.’s recorded […]