In parsing Justice Kennedy’s comments about federalism from oral argument in King yesterday, it’s important to notice that federalism principles could affect the outcomes in two very different ways. Most of Kennedy’s comments suggested that threatening the states with the loss of tax credits and the destruction of their individual insurance markets would be unconstitutionally […]
The Government is likely to prevail in King v. Burwell if its interpretation of the Affordable Care Act receives Chevron deference. This raises an important question: what influences when Supreme Court justices grant Chevron deference to agencies? Prof. Bill Eskridge and I examined this question in a paper that examined all Supreme Court cases from […]
Given the Chief Justice’s near-silence at oral argument in King v. Burwell yesterday, much will be made of Justice Kennedy’s sensitivity to the argument that accepting the plaintiffs’ interpretation of the statute would raise serious federalism concerns. That’s completely appropriate. But I want to call attention to a different question that Kennedy asked the government’s […]
For all the sound and fury from federalism scholars over the Supreme Court’s recent decision in FTC v. North Carolina Board of Dental Examiners, one might have thought that the Supreme Court had sounded the death knell for states’ ability to protect favored industries from market competition. But while North Carolina must now actively supervise […]
For all the sound and fury from federalism scholars over the Supreme Court’s recent decision in FTC v. North Carolina Board of Dental Examiners, one might have thought that the Supreme Court had sounded the death knell for states’ ability to protect favored industries from market competition. But while North Carolina must now actively supervise […]
The Section’s Supreme Court Teleconference Series continues March 5, 2015 from 3:30 – 4:30 p.m. EST with a discussion on King v. Burwell, a challenge to the Administration’s policy on the availability of subsidies through the federal health insurance exchange under the Affordable Care Act. On March 4, the Supreme Court will hear oral arguments for the […]
[CJW Note: My coauthor Jim Saywell, who is now clerking for Judge McKeague on the Sixth Circuit and will be clerking for Judge Sutton next year, previously published a terrific short essay on this case (available here). Now that the Court has decided the case against Jim’s position, I invited him to pen this short follow-up.] The Supreme Court last […]
Here is the February 2015 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 William Funk. For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the […]
Although the sharp drop in the number of new Ebola infections has, worryingly, appeared to level off, the international community has made significant progress toward raising funds toward the response, developing and now undertaking widespread testing of vaccines, and implementing measures meant to control the worldwide spread of the disease. All of this leaves the […]
It’s worth taking some time here to note the passing in January of one of the great scholars of regulation and public policy, Martha Derthick (emerita of the University of Virginia Department of Politics). Nice remembrances can be found here, here, and here . Derthick’s work roamed widely through American politics, but of particular relevance […]
The latest issue of the Yale Law Journal (and Yale Law Journal Forum) has a terrific series on the hot topic of cost-benefit analysis in financial regulation. I had planned on featuring John Coates’s important article-length contribution in the AdLaw Bridge Series, but Fabrizio Di Mascio over at the Osservatorio AIR beat me to the punch […]
The United States Patent and Trademark Office (“USPTO”) seeks input from the public to provide guidance regarding enhancing patent quality. The USPTO is making efforts to improve patent operations and procedures to provide the best work products, to enhancecustomer experience, and to improve existing quality metrics. Thus, the USPTO is introducing a comprehensive and enhanced […]
When issuing rules, agencies usually avoid the Reg Flex Act (RFA), which requires consideration of regulatory impacts on small businesses and other small entities. My forthcoming article in theAdministrative Law Review explains why and how agencies have avoided providing Reg Flex analyses for over 92 percent of rules. The House recently passed a bill that […]
I’ve been exploring a few issues in energy regulation that Congress is likely to take up this term. Up today: FERC’s efforts to promote demand response in wholesale electricity markets. What is “demand response”? It’s the umbrella term for programs that urge customers to turn off the lights when demand for electricity is extremely high. […]
It’s nice to have a level-headed debate on the legal arguments at play in the FCC’s upcoming reclassification of broadband ISPs, an issue that often generates more heat than light. And for what it’s worth, I think Gus Hurwitz and I agree on a lot. In particular, I agree with him that a skeptical court […]