CJW Note: In both academic and practitioner adlaw circles, there’s been chatter for a while about the constitutionality of the SEC using administrative law judges (ALJs) in its enforcement actions. On Monday a federal judge found such practice to likely be unconstitutional. One of my coauthors, Kent Barnett (UGa Law), has written extensively on ALJs (he’s quoted in the […]

The Dodd-Frank Wall Street Reform and Consumer Protection Act is coming up on its fifth birthday next month. Seldom has a law’s meaning been so little determined five years out from passage—especially a law running hundreds of pages. Dodd-Frank seems to frustrate everyone: Wall Street finds it massively burdensome and parts of it profoundly wrong-headed; […]

CJW Note: Last week I posted some preliminary reactions to the Supreme Court’s immigration adjudication decision in Mellouli v. Lynch. Patrick Glen, senior litigation counsel with the Justice Department’s Office of Immigration Litigation, sent me the following response, which he graciously has allowed me to repost here. The standard disclaimer applies: The views and opinions expressed […]

I am afraid that my defense of the law’s importance as a constraint in the case of Lehman Brothers, as against Peter’s charge that the Fed’s choice in that matter should be understood solely as a matter of internal institutional discretion, will give readers the misimpression that To the Edge is filled with examples of […]

I’ll return to my previously scheduled programming (about Treasury’s audacious money market fund rescue) next time, and spend this post returning Peter’s fire on the question of the Fed’s role in Lehman’s demise and clarifying what exactly we disagree about. We do have somewhat divergent views about the Fed’s crisis powers, but at some points […]

I’ve been very much enjoying Philip’s posts—I hope they have convinced our readers to buy his book and take his arguments seriously. One place where Philip helpfully sharpens our different views of law and the financial crisis is on the Fed’s controversial decision not to extend emergency lending to Lehman Brothers sufficient to stave off the […]

In a characteristically thoughtful post, Professor Richard Re examines whether the transfer of an increasing number of cases to Article I legislative courts could pose a threat to the Article III judicial power exercised by federal district courts. He writes in the context of Wellness International Network v. Sharif, which sanctioned some exercise of the […]

Last week, the DC Circuit issued a potentially important decision in Validus Reinsurance, Ltd. v. United States addressing the potential interplay of the presumption against extraterritoriality—a canon of statutory construction—and Chevron deference. Andy Grewal has a great post that summarizes the case and speculates that “Chevron deference might just be an interpretive canon which need […]

Peter Conti-Brown says that the Fed’s official explanation for its failure to rescue Lehman Brothers, which blames the Fed’s legal limitations, is “pure spin,” and that “the Fed reached for legal cover when the Lehman bankruptcy turned out very differently than they had hoped. It was a political decision, not a legal one.” Under his […]

Yesterday the Supreme Court issued a 7-2 opinion in Mellouli v. Lynch, an immigration adjudication case dealing with what counts for deportation purposes as a state law “relating to a controlled substance (as defined [by federal law]).” The Court ruled against the Federal Government, refusing to give Chevron deference to the agency’s interpretation of the […]

In this post, I will articulate my conception of legitimacy as distinct from legality, and explain what lawyers and policymakers have to gain by understanding the difference. I have to beg readers’ forgiveness for being rather philosophical and long-winded here, and I promise to move on to more exciting and concrete action in subsequent posts. […]

Since I’ve received a number of questions recently about the timing of King v. Burwell and its aftermath, I thought it was worth addressing them all in one place. When will we get a decision? The Court is likely to release its opinion in the last week of June. A decision could come sooner, but […]

Many thanks to Peter Conti-Brown for his kind words about my book and his invitation to guest-blog here. I’ve been greatly enjoying Notice & Comment since its launch, and it’s an honor to be in the company of so many distinguished legal scholars. As a way of launching my discussion, let me offer a very […]

It’s my pleasure to introduce guest blogger Philip Wallach, a Fellow in Governance Studies at the Brookings Institution. Philip is the rather rare political scientist who doesn’t take an extreme view of law, neither as politics by another means nor as a black box of binding but indiscernible rules. He is the author of an […]