Many people, including Supreme Court Justices, have expressed concern about flip flopping by the Solicitor General (SG), i.e., arguing in support of a position that is inconsistent with the position that the government took in the past. In The Solicitor General, Consistency and Credibility, forthcoming in the Notre Dame Law Review, Professors Margaret Lemos and […]
FTC Commissioner Christine Wilson, the only Republican member of the FTC, announced her resignation from the FTC this week. She explained her decision to resign in an op-ed in the Wall Street Journal. She accused FTC Chair Lina Khan and her Democrat colleagues of unethical, illegal, and unconstitutional conduct. This is the most significant resignation […]
Before he was appointed as Assistant Attorney General for Antitrust, Jonathan Kanter spent over a decade in private practice arguing on behalf of his clients that Google was violating antitrust law in many ways. That history was part of the basis for a year-long Justice Department (DOJ) investigation to determine whether Kanter is too biased […]
On April 4, Justice Barrett made an important speech at the Reagan Presidential Library.[1] Her message was “read the opinion.” At a time when confidence in the Supreme Court is low and falling and the belief that the Court is just a cluster of politicians in robes is high and rising, Justice Barrett’s point was […]
I have been harshly critical of the Supreme Court’s “shadow docket”—orders that stay major government actions without considering briefs on the issues raised by the motion for stay or providing any reasons for the action taken.[1] Unlike some critics of the shadow docket, my criticism is purely procedural. The Court has repeatedly held that an agency […]
Several scholars that I respect urged me to look at the Supreme Court’s most recent standing decisions to decide whether I agree with their belief that they signal a major change in the way the Court decides standing cases. This essay summarizes the results of my review of those decisions. I have long considered standing […]
In its August 24 order in Biden v. Texas, the Supreme Court upheld a Fifth Circuit decision that refused to stay the preliminary injunction that a district court had issued that prohibited the Biden administration from rescinding the “stay in Mexico” policy that the Trump administration had implemented. I dislike the Court’s decision in the […]
Yesterday, the FTC announced the first step in its efforts to implement the ambitious antitrust agendas of President Biden and Chair Khan. It will attempt to create a general right to repair any equipment that you own either yourself or through use of an independent service provider (ISP), rather than through the manufacturer of the […]
New FTC Chair Lina Khan has not sought my advice, but here it is. In his July 9 Executive Order, President Biden described an antitrust agenda that he wants the FTC and the other agencies with antitrust responsibilities to implement. His agenda consists of 72 major changes in competition law. Any agency that attempts to […]
On July 9, President Biden issued an executive order in which he described a comprehensive 72-part agenda to improve competition in the United States. Some of his proposals suggest that he supports the plans for radical changes in antitrust law that FTC Chair Khan proposed at her first FTC meeting on July 1. I have […]
Over the past two months, proponents of major changes in antitrust law have introduced numerous bills in Congress that have some degree of bipartisan support. One of the leading proponents of major changes, Lina Khan, is now Chair of the FTC. On July 1, Chair Khan announced major changes in the FTC’s policies and procedures […]
In the course of an eighty-minute meeting today, the new 32-year-old Chair of the FTC took a long series of actions—each by a vote of 3 to 2—that dramatically expand the power of the FTC and of its Chair. The actions included: rescinding the bipartisan statement of policy that the FTC adopted in 2015 to […]
Jeff Bezos is number one on many lists. He is the richest man in the world. He is also simultaneously number one on the enemies list of a rising star on the left—Lina Khan—and a rising star on the right—Josh Hawley. The 32-year-old Khan became famous by publishing a widely cited and highly praised student […]
The “midnight rules” phenomenon is well known and well-studied. Every presidential administration issues a disproportionately large number of rules in its final year. Midnight rules issued by the Trump administration present unusual challenges for the Biden administration, however. Virtually all of the hundreds of midnight rules issued by the Trump administration announce and implement policies […]
I devote a lot of class time to discussion of the law governing rape and sexual assault in my evidence course. The controversy surrounding the allegation that Vice President Biden committed a sexual assault against a staff member when he was a Senator twenty-seven years ago provides a good occasion to review that body of […]