We have three opinions from the D.C. Circuit last week, including another dispatch from the Loper Bright frontier. Let’s begin there. May FERC require a power generator to upgrade its circuit breaker so that another generator can safely connect to the regional power grid? The generator’s duties with respect to facility upgrades are governed by […]
Twenty-three years after being resurrected by Mead, Skidmore is seemingly resurgent. As commentators on this blog have noted, the Loper Bright Court’s express references to Skidmore suggest—aside from situations where the “best reading” of a statute is a delegation of interpretive authority—that Skidmore will be the primary test used to evaluate agency statutory interpretation going forward. But is Skidmore really any different than de novo review? Scholars and […]
It’s been a busy summer at the Administrative Conference of the United States (ACUS), and we have even more exciting work coming down the pipeline this fall. Read on to learn more about our recently published Model Rules of Representative Conduct, the projects coming before ACUS Committees this fall, and how to stream recordings of […]
The D.C. Circuit issued only one opinion last week: Brotherhood of Railroad Signalmen v. National Railroad Passenger Corp. In 2017, the Brotherhood of Railroad Signalmen (“the Union”) filed a complaint in federal district court arguing that Amtrak had violated their collective bargaining agreement by refusing to say that it would use Union-represented workers in a […]
Last week National Affairs journal published my essay on “The Regulatory Pendulum”. The article primarily concerns the topic of regulations that are issued and revoked as new Presidential administrations replace previous ones. It is available here.
When I began experimenting with Lexis+AI in my administrative law research course this past spring, we found it ineffective for questions beyond the C.F.R. For example, asking for a recent IRS private letter ruling kept pulling up rulings from the last century, and no prompt seemed able to come up with EEOC policy documents. Why did […]
The late summer burst of opinions appears to have ended, as the D.C. Circuit released no published opinions last week. But the court did hear oral argument in a noteworthy emergency administrative law appeal, KalshiEx LLC v. Commodity Futures Trading Commission. Kalshi seeks to offer what it calls Congressional Control Contracts. Buyers who correctly predict […]
Today’s Ad Law Reading Room entry is “Emergency Powers for Good,” by Elena Chachko and Katerina Linos, which is forthcoming in the William & Mary Law Review. Here is the abstract: Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive […]
Here is the August 2024 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. 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 subject here. You can […]
In April, we published a short piece in Notice & Comment on 5 key monopolization cases in the tech sector. In it, we presented the results of an informal poll of economists with expertise in antitrust. The poll asked them to rate the strength of the government’s cases by providing both stand-alone ratings and relative ones. Here, we […]
What do Elon Musk, Jamie Leach, Frank Black, and Jeffrey Moats have in common? Elon Musk is fighting the National Labor Relations Board’s (NLRB) power grab. Jamie Leach is fighting to save her company from the whims of the Consumer Product Safety Commission (CPSC). Frank Black is fighting against the Securities and Exchange Commission (SEC) so he can keep working in […]
The D.C. Circuit published an interesting standing opinion last week: Citizens for Constitutional Integrity v. Census Bureau. In an opinion by Judge Wilkins, joined by Chief Judge Srinivasan and Judge Childs, the court aimed to clarify when to relax the Article III standing test for a procedural rights claim. “There is no established test in […]
Reflecting on the litigation over the FTC’s non-compete rule, it struck me that the Supreme Court’s decision in Corner Post is a huge win for the government masquerading as a loss. A key sentence in the opinion should put the last nail in the coffin of universal remedies. If I’m right about this prediction, Corner Post’s implications for […]
More low carbon or green investment is needed to achieve the Paris Agreement’s objective of net-zero emission by 2050. To facilitate such green investment, both public and private funds must flow into emerging green technologies. When examining avenues to nudge corresponding investment in global markets, which in turn impacts trade, it is imperative to turn our attention to Sovereign […]
“When was the last time you heard of any government or ex-government official being described as dishonorable?” The late Judge Laurence Silberman posed that question fifteen years ago, in a speech titled, simply, “On Honor.” Before an audience of law students, he reflected on the decline of “honor” as a guiding principle in our understanding […]