Today, in SEC v. Jarkesy, the Supreme Court held that under the Seventh Amendment a regulated entity is entitled to a civil jury trial when the SEC seeks to impose civil penalties. In other words, when it comes to these civil penalties, Congress, by statute, cannot force regulated entities to defend themselves before an in-house […]
Today was a big administrative law day at the Supreme Court. And while Jarkesy was the more anticipated opinion, I found myself most interested by Ohio v. EPA, which stayed enforcement of an EPA rule designed to control ozone pollution that crosses state lines. The decision was 5-4, with Justice Gorsuch writing for the majority […]
The D.C. Circuit released eight opinions last week, including one under seal. The subjects ranged widely and included contract law, personal jurisdiction, insurance law, a defamation action, and the Speech or Debate Clause. In Husky Marketing and Supply Company v. FERC, the D.C. Circuit denied petitions for review of FERC orders approving rates for crude-oil […]
Today’s Ad Law Reading Room entry is “Petition Power,” by Erika Lietzan, which is forthcoming in the American University Law Review. Here is the abstract: The law cannot be kept secret. We cannot comply with rules that we do not know. Nor can we question their legitimacy, which is both our right and our duty […]
As we all await the next administrative law earthquake from the Supreme Court, it may be worth taking stock of just how much the ground has already shifted. In our new article, Major Rules in the Courts: An Empirical Study of Challenges to Federal Agencies’ Major Rules, we provide this analysis. Using a novel dataset […]
On June 6, 2024, the United States Supreme Court held in Connelly v. United States that life-insurance proceeds earmarked by a corporation for redemption of a deceased shareholder’s stock must be included when valuing the corporation for estate-tax purposes. This is a major blow for closely held business succession planning and denies estates a potentially […]
Only two true admin law opinions among the D.C. Circuit’s six decisions last week, both involving FERC. In the first FERC case, N.Y. State Public Service Comm’n v. FERC, No. 23-1192, the agency survived a challenge to a flip-flop in agency positions by a 2-1 vote. The majority opinion, written by Judge Randolph, noted that […]
Thank you for your wonderful support in making the 2023 Administrative Law Section Fall Conference another great success. We conducted a Qualtrics survey of all attendees and speakers at the 2023 Conference, and results indicated a majority preference for a Virtual Conference in 2024. As a result, we are planning to again hold a virtual […]
Here is the May 2024 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. Thanks to my terrific research assistant Neena Menon for helping put together this monthly post, and congratulations on graduating last month. I’m so excited to follow your career […]
On September 29, 2023, shortly after the FTC filed its complaint alleging that Amazon is illegally monopolizing the market for online sales of goods, I wrote a blog in Notice and Comment titled FTC v. Amazon Should Be Khan v. Khan. I began by noting that FTC Chair Khan had obtained her initial notoriety by […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” After a three-year hiatus, we’re back! Let’s get straight to business. Each of the following statements is from a different opinion by Judge Lawrence VanDyke in the same controversy: Over the last 10 […]
Today’s Ad Law Reading Room entry is “The Past and Future of Universal Vacatur,” by Mila Sohoni, which was recently published by the Yale Law Journal and posted to SSRN. Here is the abstract: Universal vacatur, the judicial power to void a regulation, is a remedy rooted in the foundations of modern administrative law, not […]
My former colleague and good friend Judge David Tatel has been in the headlines of late with the release of his memoir, Vision: A Memoir of Blindness and Justice. The articles about the book that I have read have, predictably, focused on Judge Tatel’s criticism of the Roberts Court. See, e.g., Ann Marimow’s article in […]
Clear statement rules are having a moment at the Supreme Court. Recently, in Harrow v. Department of Defense, the Court held that a statutory deadline for an appeal from a Merit Systems Protection Board ruling was non-jurisdictional. In its unanimous ruling, the Court applied a “clear statement rule”: Congress must speak clearly if it means […]
On April 23, 2024, the FTC finalized a trade regulation rule prohibiting employers from enforcing non-compete agreements against workers. In response, business groups sued and Daniel Crane, a law professor at the University of Michigan, published a piece in Notice and Comment that reported on the views of 17 anonymous online volunteers regarding the fate […]