This is the third post in a series on a proposed CMS rule that would eliminate an Obama-era ban on pre-dispute arbitration for nursing home residents. For the intro, see here. As I explored in my last post, the research suggests that malpractice law doesn’t much improve the quality of care in nursing homes. If that’s […]
From the ACUS website: ATTORNEY ADVISOR POSITION The Conference encourages lawyers who may be interested in serving as an attorney advisor to send a brief letter, accompanied by a resume and transcript (official or unofficial), expressing their interest and identifying the approximate date on which they would be available to start. The ideal candidate would […]
Last week I had the opportunity to debate/discuss the modern administrative state with Stephen Presser at an event hosted by the Federalist Society’s Austin, Texas, Lawyers’ Chapter. In preparation for our discussion, I read Professor Presser’s fascinating new book Law Professors: Three Centuries of Shaping American Law. Although the book is not focused on administrative law, I […]
In a recent working paper and op-ed, Professors Daniel Hemel and Eric Posner argue that the federal statute banning obstruction of justice applies to the president, and that the president would violate the statute if he intervened in an investigation to advance his personal interests. Hemel and Posner suggest that this can be reconciled with […]
Judge Henderson of late has been adding epigraphs to her opinions. Last week she did it in Maze v. IRS: “No taxes can be devised which are not more or less inconvenient and unpleasant.” And this week she did it in Bellagio, LLC v. NLRB: In Vegas, everybody’s gotta watch everybody else. Since the players […]
The recent deadline for comments in the FCC’s latest NPRM relating to the Open Internet has me thinking about an article I have spent the past two years looking for time to write. Indeed, I had hoped that Evan Bernick’s recent piece on the constitutionality of agency fact-finding would give me the push I needed […]
Cross-Posted on Objective Intent In January FDA published a controversial revision to its regulations defining a product’s “intended use” that, among other things, has raised an interesting logical outgrowth question. “Intended use” is an important concept in FDA law because a product’s intended use—judged by the “objective intent of the persons legally responsible for the [product’s] labeling”—can […]
Last week brought news of two major appointments at the Fed: Mark Van Der Weide, a long-time lawyer in the Fed’s supervision and regulation division, will be the new general counsel, and Randy Quarles has been nominated (and is expected to be confirmed) as the first Vice Chair for Supervision and member of the Fed’s […]
A controversy has recently erupted over a June 2016 meeting between some members of the Trump campaign team, including the President’s son, Donald Trump Jr., and at least one Russian citizen. The Trump campaign’s version of events has shifted several times, and new details continue to emerge. However, it appears that Trump Jr.’s desire to […]
“Effective August 31, 2017,” Judge Janice Rogers Brown will retire — not take senior status — from the D.C. Circuit. I clerked for Judge Brown and consider her a mentor and friend. So in her honor, I have asked the good folks in BYU Law’s library to pull every dissent she has ever written. After […]
This is the second post in a series on a proposed CMS rule that would eliminate an Obama-era ban on pre-dispute arbitration for nursing home residents. For the intro, see here. By penalizing injury-causing negligence, tort law is supposed to deter negligent conduct. That’s one of the reasons (but not the only one) that CMS […]
The Clean Air Act assigns certain fact-based judgments to the EPA, such as setting industry-wide New Source Performance Standards or Maximum Achievable Control Standards. And the Act assigns other such decisions to the states, subject to federal review, including case-by-case determinations of Best Available Control Technology and Best Available Retrofit Technology. This post seeks to […]
That the executive branch must provide information to Congress is well-established. The Constitution obliges the President to “give to the Congress Information of the State of the Union.” Executive agencies are required by statute to submit over 4,000 reports to Congress annually. Congress’s committees hold hundreds of days of oversight hearings every year. But how […]
The EOIR Benchbook, as well as other resources, such as Asylum Officer Basic Training lesson plans and now parts of the Department of State’s Foreign Affairs Manual, have been scrubbed from official federal websites. It shows a disturbing trend toward lack of transparency and accountability. It begs the question, does it mean the judges are no longer […]
In April 2014, the Center for Immigrants’ Rights Clinic (on behalf of Maggio & Kattar) filed a FOIA request seeking information about the Department of State’s Administrative Processing Program. This same year, we researched and prepared a “Frequently Asked Questions” document that is available here. Administrative processing, also known as Security Advisory Opinion (SAO), is […]