Monthly Archives: April 2018

ICYMI: Regulatory Review Series on ACUS’s December 2017 Recommendations

by Emily Bremer — Saturday, Apr. 28, 2018@emilysbremer

In March, The Regulatory Review published an excellent series of opinion essays analyzing the five recommendations that the Administrative Conference of the United States adopted at its last Plenary session, held in December 2017.  I highlighted the new recommendations (and a rare separate statement) when they were published, but The Regulatory Review series delves much deeper.  In […]

Over at Written Description: Ouellette on Walker/Wasserman on PTAB and Administrative Law

by Christopher J. Walker — Friday, Apr. 27, 2018@chris_j_walker

Over at the IP/patent law blog Written Description, Lisa Ouellette has a very thoughtful post on The New World of Agency Adjudication, my new paper with Melissa Wasserman that is forthcoming in the California Law Review next year. Here’s the first and last paragraph: Christopher Walker is a leading administrative law scholar, and Melissa Wasserman‘s excellent work on […]

Coping with Chevron: Justice Gorsuch’s Majority and Justice Breyer’s Dissent in SAS Institute, by Nicholas R. Bednar

by Guest Blogger — Wednesday, Apr. 25, 2018

Neither Justice Breyer nor Justice Gorsuch are fond of the “mandatory,” two-step approach to Chevron. Shortly after the D.C. Circuit molded the two-step standard from Justice Stevens’s opinion, then-Judge Breyer argued that a mandatory version of Chevron would result in a “greater abdication of responsibility to interpret the law than seems wise.” Since joining the […]

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Critiquing Hernandez v. Mesa: Contextual Assessment of Administrative Law’s Potential as an Alternative to Bivens Remedies

by Bernard Bell — Wednesday, Apr. 25, 2018

On June 7, 2010, border patrol agent Jesus Mesa fatally shot Sergio Güereca, a 15–year–old Mexican national.  Güereca was standing near the cement culvert separating the United States and Mexico.  Hernández and several friends had run up the culvert’s embankment on the U.S. side, touched the border fence, and returned to Mexican territory.  Agent Mesa […]

Administrative Law SSRN Reading List, March 2018 Edition

by Christopher J. Walker — Tuesday, Apr. 24, 2018@chris_j_walker

April has been a busy month here at the Notice and Comment blog, with a terrific, two-week symposium organized by my co-blogger Jennifer Mascott on Lucia v. SEC, the constitutional challenge to the appointment of SEC administrative law judges that the Supreme Court heard on Monday. So my monthly SSRN post is coming a bit […]

The Government and the Appointments Clause—Just the Facts

by Jennifer Mascott — Monday, Apr. 23, 2018@jennmascott

Today the Supreme Court will hear argument in Lucia v. SEC about whether Securities and Exchange Commission administrative law judges (ALJs) exercise “significant authority” and thus are subject to the Constitution’s Appointments Clause requirements. The straightforward arguments from the government and the petitioner, showing how ALJs are “officers” under Supreme Court precedent, history, and the […]

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Towards a Modern Understanding of “Officers of the United States,” by James A. Heilpern

by Guest Blogger — Sunday, Apr. 22, 2018

On Monday, the Supreme Court will hear oral arguments in the case Lucia v. SEC. The question presented is whether administrative law judges of the Security Exchange Commission should be considered “Officers of the United States” subject to the Appointments Clause of the U.S. Constitution. In a previous post, I suggested that the Court should […]

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D.C. Circuit Review – Reviewed: “Why Congress Matters: The Collective Congress in the Structural Constitution”

by Aaron Nielson — Friday, Apr. 20, 2018@Aaron_L_Nielson

Scholarship takes a hit when the flurry that is the end of the second semester arrives. It takes time to write exams; host review sessions; meet with nervous students; and sometimes even reach out to potential employers about students who are still looking for summer slots. Hence, when April comes around, I’ve learned that for […]

Just how many billions of dollars are at stake in the litigation over cost-sharing payments?

by Nicholas Bagley — Friday, Apr. 20, 2018

Earlier this week, the Court of Federal Claims certified a class action brought by insurers to recover the cost-sharing payments that President Trump unceremoniously terminated. At first blush, the court’s opinion looks unremarkable. Because insurers share a common legal claim—you promised to pay me, and you broke that promise—it makes sense to certify a single […]

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