Today’s Ad Law Reading Room entry is “Public Patent Powers,” by Laura Dolbow (soon to be of Colorado Law), which is forthcoming in the Michigan Law Review. Here is the abstract: Congress has created multiple structures for agencies to control how patents are used, but that institutional design choice has received little academic attention. This […]
In a spirit similar to that of recent great posts in this forum, this blog post suggests yet another way agencies can preemptively insulate certain rules from Major Questions Doctrine (MQD) challenges. In particular, we focus on how overlapping federal, state and international regulatory regimes may reduce the incremental costs of rulemakings, and therefore weigh against a finding […]
Background The SECURE 2.0 Act (“SECURE 2.0” or “the Act”) contains a host of recent changes intended to make sure employers, the federal government, and the retirement plan industry are helping Americans save more for retirement. Enacted on December 29, 2022, SECURE 2.0 is an extension of the Setting Every Community Up for Retirement Enhancement […]
Last week, the D.C. Circuit issued two administrative law opinions, one involving energy law and the other labor law. In Sierra Club v. FERC, the D.C. Circuit held that FERC was not arbitrary and capricious when it extended the deadlines for construction of two pipelines, one in New York and the other in Texas. FERC […]
Prior to the COVID pandemic, most broadband service providers (“BSPs”) offered heavily discounted but capable internet plans to lower-income households for about $10 to $15 per month. Dissatisfied with these market-based solutions, the Infrastructure Investment and Jobs Act of 2021 (“IIJA”) established the “Affordable Connectivity Program” or “ACP.” Under the ACP, the federal government provides a $30 per month […]
This week the George Mason Law Review published the accompanying print issue to its Fall 2023 Symposium, Chevron on Trial: The Supreme Court and the Future of Agency Authority and Expertise. The focus of the symposium was the fate of Chevron deference in light of the Supreme Court’s pending decisions in Loper Bright Enterprises v. […]
There has been a quiet but noteworthy development in the litigation of the Environmental Protection Agency’s Good Neighbor Rule—adding a new administrative law wrinkle to a case with already big administrative law implications. On February 21, the Supreme Court heard oral argument on a set of stay applications, consolidated under Ohio v. EPA, that ask the Court to block […]
A vigorous debate recently has emerged over whether the APA authorizes federal courts to vacate agency action on judicial review. Perhaps because this debate is an outgrowth of the longer-running dispute over “nationwide” or “universal” injunctions, it is operating on the premise that vacatur is a remedy, like an injunction or a declaratory judgment. I’m […]
Take a look at the award deadlines provided below to get detailed information about the requirements and guidelines. Gellhorn-Sargentich Law Student Essay Award Competition Created in 2006, the Gellhorn-Sargentich Law Student Essay Award Competition honors the memory of two men who left us too soon, Ernest Gellhorn, a distinguished law dean, administrative law professor, and […]
Earlier this week, Max Sarinsky published an excellent piece about how agencies could get ahead of major questions doctrine (MQD) challenges to new rules. That blog post, which drew heavily from Sarinsky’s new law review article with Richard Revesz, argues that agencies should follow the lead of the Environmental Protection Agency and articulate specific regulatory antecedents to […]
Our constitutional order contains an “anti-power-accumulation principle.” This principle has three components: first, power must be formally and functionally exercised exclusively by the intended actor–be it the state or federal government, one of the branches within those respective governments, or the people, whether as individuals or acting through a formal or informal association, such as a corporation; second, there […]
The Justice Department’s March 21, 2024 monopolization lawsuit against Apple implements the last piece of an agreement reached between the FTC and DOJ in June of 2019 ceding Facebook/Meta and Amazon to the FTC and Google and Apple to the DOJ. There was never much of a question about whether the federal agencies and their state Attorney General counterparts would launch […]
Corner Post v. Board of Governors of the Federal Reserve System,[1] recently argued in the Supreme Court, mainly concerns the limitations period for judicial review of agency decisions. The case also raises issues about administrative law remedies, which came up briefly at the argument. Important for both sets of issues is that Corner Post, a private […]
In a forthcoming law review article, Richard Revesz and I contend that agencies should preemptively rebut challenges under the major questions doctrine by drawing parallels to past agency actions. A recent federal regulation offers a template for this analysis. In its pollution standards for new vehicles issued last week, the Environmental Protection Agency extensively responded to claims that […]
In the Trump era, I made several posts that explored how separation-of-powers principles might protect the President from prosecution, regarding his alleged interference with Department of Justice investigations. I have now written a longer piece, The President’s Criminal Immunity. The abstract is below: This Essay addresses a monumental question that the Supreme Court will soon […]