On March 30th, the Supreme Court will hear oral argument in United States Army Corps of Engineers v. Hawkes Co., Inc. The question presented concerns “final agency action”: Is the Army Corps’ determination that the Clean Water Act applies to waters on private land “final agency action” reviewable under the Administrative Procedure Act? According to […]
Kimberly Robinson has posted an interesting story about how early you have to get up to get a ticket to a Supreme Court argument. The answer: sometimes very early. This reminded me of my post from last October: “No One Should Be Waiting in Lines.” The Supreme Court, like the Washington Monument, should make at […]
The 12th Annual Administrative Law and Regulatory Practice Institute (Institute) begins one week from today. The Institute is hosted by the Section of Administrative Law and Regulatory Practice and sponsor, The Regulatory Group. This year’s Institute, which is chaired by John F. Cooney, Partner at Venable LLP and Vice-Chair of the Section, will take place […]
Tax season is right around the corner, and many Americans will soon discover that they paid more taxes in 2015 than they lawfully owed. On filing their returns, they will happily claim a tax refund. Suppose, however, that the President, with the support of Congress, decides that the rules should retroactively change. Rather than return […]
Last month over at Jotwell, Adrian Vermeule reviewed Administrative War by then-Stanford Law Professor and now-California Supreme Court Justice Tino Cuellar. Justice Cuellar’s article was published in the George Washington Law Review in 2014. Indeed, it was the foreword to the Law Review’s annual administrative law issue, which also included, among others, an article of mine […]
Last week, I praised Justice Elena Kagan for her sharp questions at oral argument. This week, however, her dissent in Lockhart v. United States prompts a friendly concern: Should there be pop culture references in Supreme Court opinions? Although such references are fun today, I fear they will confuse lawyers tomorrow. Indeed, just as the […]
It never fails. You leave the country for a much-needed vacation and the Supreme Court drops an opinion you’ve been waiting for. On Tuesday, in Gobeille v. Liberty Mutual, the Supreme Court rebuffed Vermont’s effort to lift the veil of secrecy surrounding health-care prices. In an opinion by Justice Kennedy, the Court held that ERISA prevented […]
Here is the February 2016 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk. I’m heading off to a symposium sponsored by the Missouri Law Review and organized by Erin Hawley, provocatively titled A Future Without the Administrative State?, […]
Over at Marginal Revolution, Tyler Cowen has a prescient (and scary) post on the “fear of regulatory reprisal from a Trump administration,” drawing on Philip Hamburger’s provocative book—Is Administrative Law Unlawful?—as well as Adrian Vermeule’s ingeniously titled review of the book:No. (Hamburger has since posted a nice parry entitled Vermeule Unbound, alluding to Posner and […]
“The Second Hoover Commission’s 60th Anniversary and Lessons for Regulatory Reform” The Hoover Institution — 1399 New York Ave. NW, Washington, D.C. On March 16, the ABA Section of Administrative Law and Regulatory Practice and the Hoover Institution will co-host an afternoon-long conference on the past, present, and future of regulatory reform, at the Hoover […]
The World Health Organization’s dismal handling of the Ebola outbreak has led to calls for sweeping reforms to the world’s system for managing infectious disease. The consensus view, though, is that we shouldn’t start from scratch. Laurie Garrett captures the prevailing wisdom in her incredible Foreign Affairs article on Ebola: The WHO performed so poorly […]
Justice Elena Kagan has many talents, one of which is asking sharp questions at oral argument. For instance, one of my favorite moments as a litigator came, in a case about raisins, when Kagan asked these questions to the attorney for the United States: (1) “[B]efore you do that then [i.e., get to his prepared […]
A lot of attention these days has been focused on prosecutorial discretion in the administrative law context—the scope of the Executive Branch’s authority to not enforce the law. We recently had a week-long online symposium about it in the immigration context, with a particular focus on the pending Supreme Court case challenging the Obama Administration’s […]
From the Portland Tribune: Health Republic Insurance Company of Oregon, a Lake Oswego-based insurer that is phasing down its operations, on Wednesday filed a $5 billion class action lawsuit on behalf of insurers it says were shorted by the federal government under an Obamacare program. The lawsuit, filed in the United States Court of Federal […]
At the ABA’s Mid-Year Meeting on February 8, the House of Delegates approved a list of recommended changes to the Administrative Procedure Act (APA) submitted by the Section of Administrative Procedure & Regulatory Practice. This was an important development for the Section because of the centrality of the APA to what we do. It was […]