Monthly Archives: January 2016

D.C. Circuit Review – Reviewed: Brooding Spirits

by Aaron Nielson — Saturday, Jan. 30, 2016@Aaron_L_Nielson

Here is a pretty good rule of thumb: If you want to understand an appellate judge, don’t spend too much time on majority opinions. To be sure, those opinions are almost always the most important ones—they’re the law, after all.* But the author of a majority opinion must write an opinion that reflects the views […]

New Legislation Might Actually Improve Rulemaking—Here’s How, by Bruce Kraus

by Guest Blogger — Friday, Jan. 29, 2016

Both the NYT and Connor Raso’s post below warn darkly of rumored new regulatory reform legislation. But any new bill will be a breath of fresh air, compared to its archly-partisan predecessor, the Financial Regulatory Responsibility Act of 2011. Connor and I roundly denounced the FFRA in the SSRN draft of our Rational Boundaries article. […]

Notice and Comment Ex Post (and Ex Ante), by Daniel Hemel

by Daniel Hemel — Friday, Jan. 29, 2016

My co-blogger Andy Grewal expresses skepticism that the Obama administration can cure the notice-and-comment problem in United States v. Texas by initiating notice-and-comment proceedings now and then promulgating its Deferred Action for Parents of Americans policy as a new final rule. In aprior post, I said it seems “pretty clear” that such an approach would […]

Three Reasons Why OIRA Needs A Strong Institutional Base, by Jim Tozzi

by Guest Blogger — Wednesday, Jan. 27, 2016

OIRA, the Office of Information and Regulatory Affairs, located in the White House Office of Management and Budget, is the nation’s gatekeeper over federal regulatory activity. All executive branch agencies are prohibited from releasing economically significant regulations without first submitting their regulations to OIRA for review. In the performance of this duty OIRA is often […]

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D.C. Circuit Scholarship

by Aaron Nielson — Wednesday, Jan. 27, 2016@Aaron_L_Nielson

Over the weekend, as part of my weekly review of D.C. Circuit decisions, I included a footnote listing many articles written by D.C. Circuit judges. Without question, this list is incomplete, but it is a good place to start for scholars or advocates seeking to get a sense of the Court’s judges and their scholarly […]

D.C. Circuit Clerkships: Who is Still Hiring?

by Aaron Nielson — Wednesday, Jan. 27, 2016@Aaron_L_Nielson

I have written more than my share about clerkship hiring and the collapse of the national hiring plan.* Long story short, about three years ago, the D.C. Circuit abandoned the plan because it had become an open secret that judges and applicants around the country were not abiding by it. Following the D.C. Circuit’s decision, […]

Mooting the APA Challenge to Obama’s Immigration Policy

by Andy Grewal — Wednesday, Jan. 27, 2016

In a characteristically thoughtful post, my co-blogger Daniel Hemel considers a puzzle raised by the ongoing battle over the Obama administration’s decision to offer relief to some unlawful aliens. The Supreme Court, in United States v. Texas, will soon consider the legality of the administration’s actions under the “Deferred Action for Parents of Americans and […]

Will Congress Make Rulemaking a Practically Impossible Task?

by Connor N. Raso — Tuesday, Jan. 26, 2016

A bipartisan group in the Senate is working on a large package to reform the rulemaking process. Negotiations are ongoing but the New York Times reported last week that the package is likely to require agencies to engage in additional cost-benefit analysis that would be subject to judicial review. In joint work, I have argued […]

Regulatory Deossification Revisited, by Jim Tozzi

by Guest Blogger — Monday, Jan. 25, 2016

Every year the federal government decides three major economic matters 1) the amount of money that the government will spend 2) the amount of money it will raise in taxes and 3) the amount of money that it will require the private sector and states, municipalities and tribes to spend on regulatory compliance costs. The […]

Notice and Comment, Behavioral Economics, and United States v. Texas, by Daniel Hemel

by Daniel Hemel — Monday, Jan. 25, 2016

In many respects, the Supreme Court’s cert grant earlier this week in United States v. Texas was utterly unsurprising. The Fifth Circuit Court of Appeals affirmed a nationwide injunction blocking a Department of Homeland Security policy that would have allowed approximately 4 million parents of U.S. citizens and lawful permanent residents to seek “deferred action” […]