Warning! This post may only be of interest to me. But there is a mystery this week in the D.C. Circuit: What happened in Coburn v. Murphy? In Coburn, the D.C. Circuit included an intriguing footnote: “Judge Henderson was drawn to replace Chief Judge Garland, who originally heard argument in this case but did not […]
One of the most unusual cases you will ever read is McClure v. Carter —from the District of Idaho, in 1981. The case was a constitutional challenge to a judicial appointment, brought by a sitting U.S. Senator. That’s unusual by itself. The case is more unusual still, however, because the suit was brought under a […]
Jonathan Adler (Case Western), Roger Meiners (Texas A&M), Andrew Morriss (UT-Arlington) and Bruce Yandle (Clemson) have co-authored Baptists, Bootleggers & Electronic Cigarettes, which is forthcoming in the Yale Journal on Regulation and has already been previewed online here and elsewhere. As the title suggests, this article applies the “Baptists & Bootleggers” theory of regulation to […]
Last Friday, the D.C. Circuit rejected West Virginia’s challenge to the so-called “like it, keep it” fix, which told the states that they could temporarily decline to enforce the ACA’s new insurance rules against their insurers. (Background here.) I’m sympathetic to West Virginia’s underlying legal claim. It was unlawful, in my judgment, for the Obama […]
June has come to an end, the Justices have dispersed, and once more, in the words of a young John Roberts, “the Constitution is safe for the summer.” Every year, the Supreme Court rushes to finish up its work before the Fourth of July. And then the Justices are off to Austria, Malta, Arkansas, Italy, […]
On June 16, 2016, Justice Clarence Thomas wrote for a unanimous Supreme Court that so-called “implied certification” theories supporting False Claims Act suits were permissible under the statute but ultimately sided with the government contractor because “if the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that […]
Last week, the Department of Justice asked the Court of Federal Claims to dismiss a massive class-action lawsuit in which co-ops have asked for money owed to them under the risk corridor program. To my knowledge, the government’s motion is its first substantive filing in any of the risk corridor cases. The litigation was precipitated […]
My co-blogger Andy Grewal asked in a post on Tuesday: “Why doesn’t the IRS comply with the Congressional Review Act?” My first thought on reading Andy’s post was: “Yeah, why doesn’t it?” My second thought was: “Maybe it does.” The Congressional Review Act, passed in 1996, allows the House and Senate to block certain federal […]
Dan Ho and Becky Elias have a wonderful article in the Boston Review about their new research on the benefits of peer review in restaurant inspections. Beginning in 2014, we designed a randomized, controlled trial to test the effectiveness of peer review with the food safety staff of King County, where Seattle is located. Half […]
Under the Congressional Review Act, the effective date of so-called “major” regulations must be delayed to give Congress a chance to veto them via a joint resolution. Major regulations are generally those that would have a $100+ million effect on the economy. See 5 USC 804(2)(A). See also 5 USC 804(2)(B) & (C) (providing other […]
As Will Baude reminds us, courts often do important things that don’t receive enough attention. Baude dubbed this dynamic the “shadow docket” in the context of the Supreme Court, but there is no reason why his insight is limited to the Justices. Courts everywhere make decisions that are significant but yet don’t end up in […]
Justice Kennedy’s opinion for the majority in Encino Motorcars, LLC v. Navarro is significant for a number of reasons. For one, it marks the first time that the Supreme Court has used a Perma.cc link in an opinion—a victory for the Harvard Law School Library and its Perma.cc partners in their fight against link rot […]
There has been much excitement on the playground of administrative law about the recent decision in Encino Motorcars LLC v. Navarro, in which the Court refused to defer to a Labor Department regulation under the Fair Labor Standards Act. Perhaps because of swirling background debates over Chevron, arbitrariness review, “libertarian administrative law,” and the robustness […]
Thanks to Chris Walker for inviting me to join the conversation about last week’s net neutrality decision. Previous posts by Aaron Nielson and Daniel Deacon did an excellent job highlighting one of the decision’s major themes, the dialogue between the majority and the partial dissent regarding the proper amount of scrutiny to apply to arbitrary […]
The administrative law professoriate is abuzz about the Supreme Court’s recent opinion in Encino Motorcars, LLC v. Naravrro . The 6-2 majority vacated and remanded the 9th Circuit’s rejection of a challenge to a Department of Labor regulation that would have entitled certain car dealership employees to overtime pay. Legal academics and administrative lawyers presently […]