The parties’ briefing in Loper Bright and Relentless[1] has utterly ignored statutory sections—and one section in particular—that are crucial for understanding both why the government should lose these cases and, more importantly, why the Chevron doctrine[2] cannot and should not survive in an era of textualism. The relevant statute—the Magnuson-Stevens Fishery Conservation and Management Act—superficially appears complex and hard to understand. […]

Doctrinal Crossroads: Major Questions, Nondelegation & Chevron DeferenceThursday, January 25, 2024, at 8:15 a.m.-6:00 p.m. ESTLocation: Harvard Law School, 1585 Massachusetts Ave, Cambridge, MA 02138 Join Pacific Legal Foundation and the Harvard Journal of Law & Public Policy for our day-long law symposium, “Doctrinal Crossroads: Major Questions, Nondelegation & Chevron Deference.” The symposium will feature moderator-led discussions […]

Dan Ho and I have an op-ed in The Hill today criticizing the Biden administration’s proposed rules for using artificial intelligence in government services. [W]here the rules could go astray is in their breadth. The rules prohibit the use of AI in “government services” unless agencies comply with an extensive set of procedures. Those procedures […]

Introduction The Supreme Court heard argument last month in Moore v. United States, a case with potentially broad implications for the income tax system. The case involves a challenge by the Moores, two individual taxpayers, to 26 U.S.C. 965, known as the Mandatory Repatriation Tax (“MRT”), which is a provision of the 2017 tax reform legislation. As […]

Big Tech claims a broad First Amendment right to censor user speech. FCC Commissioners Carr and Simington explain why that’s wrong.

On January 17, the Supreme Court will hear oral argument in the closely watched case of Loper Bright Enterprises v. Raimondo. The Court will consider whether to overrule, or at least curtail in one way or another, the deference doctrine articulated in its landmark Chevron v. Nat. Res. Def. Council (1984) decision. As readers of this space know, […]

Now that the grocery giant Kroger has certified its substantial compliance with the Federal Trade Commission’s request for information, the antitrust regulator must decide how to proceed with Kroger’s $24.6 billion acquisition of its rival Albertsons. Kroger happens to be based in Cincinnati, my hometown, where it’s an important part of the corporate base. However, I’m rooting against the […]

At the Association of American Law Schools (AALS) annual meeting in Washington, DC, this week, I’ll be moderating a terrific panel on the student loan cancellation cases the Supreme Court decided last term. The panel will take place on Thursday, January 4, 2024, from 4:45-6:30PM, and it will be livestreamed here. Here’s a description of […]

Since 2015, I’ve served as co-editor, currently with the brilliant Miriam Seifter, of the the Administrative Law Section of The Journal of Things We Like (Lots) (“Jotwell”).  Jotwell is a terrific resource for administrative law practitioners and scholars. Roughly once a month, Jotwell’s Administrative Law Section publishes a short review of a current piece of administrative law scholarship, usually […]