Monthly Archives: June 2016

​Delaying the Risk Corridor Lawsuits

by Nicholas Bagley — Thursday, June 30, 2016

Last week, the Department of Justice asked the Court of Federal Claims to dismiss a massive class-action lawsuit in which co-ops have asked for money owed to them under the risk corridor program. To my knowledge, the government’s motion is its first substantive filing in any of the risk corridor cases. The litigation was precipitated […]

Maybe the IRS Is Complying with the Congressional Review Act After All, by Daniel Hemel

by Daniel Hemel — Thursday, June 30, 2016

My co-blogger Andy Grewal asked in a post on Tuesday: “Why doesn’t the IRS comply with the Congressional Review Act?” My first thought on reading Andy’s post was: “Yeah, why doesn’t it?” My second thought was: “Maybe it does.” The Congressional Review Act, passed in 1996, allows the House and Senate to block certain federal […]

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Physician, Review Thyself!

by Nicholas Bagley — Wednesday, June 29, 2016

Dan Ho and Becky Elias have a wonderful article in the Boston Review about their new research on the benefits of peer review in restaurant inspections. Beginning in 2014, we designed a randomized, controlled trial to test the effectiveness of peer review with the food safety staff of King County, where Seattle is located. Half […]

​D.C. Circuit Review – Reviewed: A Flamingo in the Shadows

by Aaron Nielson — Saturday, June 25, 2016@Aaron_L_Nielson

As Will Baude reminds us, courts often do important things that don’t receive enough attention. Baude dubbed this dynamic the “shadow docket” in the context of the Supreme Court, but there is no reason why his insight is limited to the Justices. Courts everywhere make decisions that are significant but yet don’t end up in […]

Chevron Step 0.5, by Michael Pollack and Daniel Hemel

by Daniel Hemel — Friday, June 24, 2016

Justice Kennedy’s opinion for the majority in Encino Motorcars, LLC v. Navarro is significant for a number of reasons. For one, it marks the first time that the Supreme Court has used a link in an opinion—a victory for the Harvard Law School Library and its partners in their fight against link rot […]

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How Should Courts Consider Agency Remarks During the Comment Period?, by Daniel Lyons

by Guest Blogger — Thursday, June 23, 2016

Thanks to Chris Walker for inviting me to join the conversation about last week’s net neutrality decision. Previous posts by Aaron Nielson and Daniel Deacon did an excellent job highlighting one of the decision’s major themes, the dialogue between the majority and the partial dissent regarding the proper amount of scrutiny to apply to arbitrary […]

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Encino is Banal, by Adrian Vermeule

by Guest Blogger — Thursday, June 23, 2016

There has been much excitement on the playground of administrative law about the recent decision in Encino Motorcars LLC v. Navarro, in which the Court refused to defer to a Labor Department regulation under the Fair Labor Standards Act. Perhaps because of swirling background debates over Chevron, arbitrariness review, “libertarian administrative law,” and the robustness […]

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Justice Ginsburg in Encino

by Jeff Pojanowski — Tuesday, June 21, 2016

The administrative law professoriate is abuzz about the Supreme Court’s recent opinion in Encino Motorcars, LLC v. Naravrro . The 6-2 majority vacated and remanded the 9th Circuit’s rejection of a challenge to a Department of Labor regulation that would have entitled certain car dealership employees to overtime pay. Legal academics and administrative lawyers presently […]

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Some Thoughts on Chevron and Patent Exceptionalism from Today’s Supreme Court Decision in Cuozzo

by Christopher J. Walker — Monday, June 20, 2016@chris_j_walker

Today the Supreme Court decided Cuozzo Speed Technologies v. Lee, a case concerning the scope of inter partes review by the Patent Trial and Appeal Board—a review procedure created by the Leahy-Smith America Invents Act of 2012 (AIA). The Court ruled in favor of the Patent and Trademark Office (PTO) on two separate issues: (1) that […]