Last month, Notice & Comment hosted a two-week symposium on Seminole Rock (or Auer) deference. The complete symposium is now available on SSRN. Here is the link. And here is the Table of Contents: Introduction by Aaron Nielson The Lost History of Seminole Rock by Sanne H. Knudsen & Amy J. Wildermuth Henry Hart’s Brief, […]
On 28th June, the Department of Justice, Environmental Protection Agency, and Volkswagen proposed a judicial settlement to partially resolve the automaker’s Clean Air Act violations associated with the sale of almost 500,000 2.0 liter diesel engines that were equipped with “defeat devices.” While no one—not even Volkswagen—disputes the company’s misdeeds, the proposed partial consent […]
The D.C. Circuit, sitting en banc, devoted over seven hours — seven hours! — of oral argument to a single matter. And the full court opted to hear the case en banc in the first instance, without an ordinary three-judge panel ever having a shot at it. Obviously, the media paid attention. With so much […]
The American Bar Association Section of Administrative Law and Regulatory Practice hosts an annual conference in Washington, D.C. If you care about “admin law” — and if you don’t, you really should — it is a great event. I attended for the first time last year and enjoyed the interesting mix of lawyers and scholars. […]
To understand how private food safety standards have emerged as competitors with regulations adopted through more conventional public law processes, it is worth understanding how the major private standard setter – Global GAP – works and where it came from. The movement for private certification of farming practices resulted from two related consumer pressures and […]
Congressional Republicans will have to confront at least three tough strategic questions as they move to shut off risk corridor payments. (Prior coverage is here.) First, the courts will entertain congressional objections to any risk corridor settlements only if the House has standing to intervene in the litigation. But the question of whether the House […]
Tax issues related to the Trump Foundation continue to grab headlines. The Washington Post’s David A. Fahrenthold has tirelessly examined the organization, and recently discussed “four new cases of possible self-dealing [that] were discovered in the Trump Foundation’s tax filings.” Any allegation of self-dealing sounds inherently bad, but the discussion of the Trump transactions […]
In thinking about the future of Auer deference, I begin with a critical supposition, that stare decisis will prevail and the Court will not overturn Auer, at least not based on separation of powers principles.* Retaining Auer, however, does not mean that its doctrine will remain static. Drawing especially but not exclusively from Christopher v. […]
I planned to post solely about how judicial review would operate without Auer deference. I recently ruminated in a forthcoming Missouri Law Review symposium paper about a future without Chevron, and I think post-Auer and post-Chevron futures offer interestingly different implications. But along the way I found myself thinking about the origins of Auer deference. […]
From the Wall Street Journal: Congressional Republicans are warning the Obama administration not to settle with insurers that have sued the government over an Affordable Care Act program to compensate them for losses under the law, saying such a move would bypass spending limits set by Congress. I get what the Republicans are doing here. […]
Today the Center for Compliance Studies at Loyola University Chicago School of Law is hosting a terrific conference entitled Complying with Law. Here’s the description from the conference website: The Loyola University Chicago Journal of Regulatory Compliance will host a one-day symposium to launch its inaugural issue and the establishment of the Center for Compliance Studies. […]
The big(-ish) news this week is that Judge Pillard will participate in the en banc “Power Plant Rule” argument next Tuesday. (Chief Judge Garland still is recused.) We don’t know why she was recused before or why she is not recused now. But that is par for the course; often the reasons for recusals are […]
Our symposium on Seminole Rock deference has now come to an end. I will take a few moments, however, to thank all of the participants. By my count, 30 different contributors posted as part of this symposium. We are fortunate that so many folks, with so many different perspectives, were willing to take the time […]
Are you looking for an additional way to stay on top of developments in administrative law? Well, you’re in luck! The ABA Section of Administrative Law and Regulatory Practice just released its seventeenth edition of Developments in Administrative Law and Regulatory Practice, covering developments in the field during the 2015 calendar year. The paperback, now […]
“[I]t is emphatically the province and duty of the Judicial Department to say what the law is.” These simple, straightforward words constitute Chief Justice John Marshall’s foundational definition in Marbury v. Madison of “the judicial Power” that the Constitution vests in the federal courts. Repeated in countless court decisions, law review articles, and civics textbooks, […]