A moralist, economist, and lawyer walk into a bar. The economist claims they should lead antitrust inquiries. After all, antitrust is about markets and who knows more about markets than economists? The lawyer scoffs. Economists may know about supply and demand, but they don’t know the first thing about how to design regulations to achieve […]
“America’s Court” (as I call it) strikes again: Welcome back to Sixth Circuit Reviewed! This month, no published administrative law cases from the Court. But don’t fret. Fireworks this round came by way of a motions panel, which stayed the Federal Communication Commission’s net neutrality rules. Quick (overly simplified) background: The Communications Act of 1934 […]
With the demise of Chevron deference, another significant deference doctrine warrants renewed examination: the judicial deference accorded an agency’s findings of facts during an administrative hearing. Courts have deferred to an agency’s decision when it is supported by substantial evidence by giving one word used twice in the Administrative Procedure Act (“APA”) two opposite meanings; one requires deference in the extreme, […]
During the past Term, the Supreme Court issued a series of landmark decisions upending longstanding interpretations of administrative law. These decisions have important implications not only in the context of those particular cases, but also in the larger framework of how judicial review of agency action is developing. The Four Decisions In one case, SEC v. […]
The D.C. Circuit published eight opinions this week, including two on the Foreign Sovereign Immunities Act (here and here), one on standing to appeal a denial of a motion for class certification, another on the constitutionality of the Digital Millennium Copyright Act (spoiler alert: the facial challenges failed), and one on what I trust is […]
Today’s Ad Law Reading Room entry is “Nondelegation, Original Meaning, and Early Federal Taxation: A Dialogue With My Critics,” by Nicholas R. Parrillo, which was recently published by the Drake Law Review and posted to SSRN. (Note that the SSRN version includes an online-only appendix containing further dialogue. Parrillo also blogged about aspects of the […]
Last week, the en banc Fifth Circuit, by vote of 9 to 7, issued an opinion holding that a provision of the Telecommunications Act of 1996 violates the nondelegation doctrine, creating a circuit split. The opinion spends four pages discussing my article A Critical Assessment of the Originalist Case Against Administrative Regulatory Power, 130 Yale L.J. 1288 (2021), and Philip Hamburger’s […]
Kristin Hickman, Dick Pierce, and I just finished the 2024 summer update to our federal administrative law casebook. As part of that process, we spent a fair amount of time discussing and structuring how we are going to teach statutory interpretation in our administrative law courses–at least for now—after Loper Bright eliminated Chevron deference. We […]
The Michigan Law Review is soliciting proposals for its annual book review for pieces “related to the recent (and ongoing) sea changes in administrative law.” From the request for proposal, which you can find here: This is a unique and expedited request—the call for Book Review submissions has closed for the year. However, the Editors […]
As Judge Griffith noted, it’s peak opinion-issuing season at the D.C. Circuit. The court issued 15 opinions last week, about 10 of which fall into the “admin law” category. So the recaps will necessarily be brief! Perhaps the most noteworthy decision came in Amazon Services LLC v. U.S. Dep’t of Agriculture, No. 22-1052, where the […]
The American Bar Association’s Section of Administrative Law and Regulatory Practice is pleased to sponsor the ABA Administrative Law Fellowship. The Fellowship, established in 2021, aims to diversify the cohort of legal academics in administrative law and regulatory practice by positioning lawyers currently in practice to be successful job candidates in the academic market. The […]
I’ve never been a fan of Chevron. In particular, I didn’t like the game-playing around step one or all the confusion about step zero or step two. Mostly I disliked the rigidity of Chevron. Assuming textual ambiguity of the statute, deference to an agency’s interpretation is sometimes warranted, sometimes not. As a result, I prefer the Skidmore approach which grants weight to the […]
In the first week of July, the D.C. Circuit issued five administrative-law opinions. First, in Evergreen Shipping Agency (America) Corp. v. Federal Maritime Commission, the court vacated an order that involved late fees for borrowed shipping containers. In April 2020, an ocean carrier (Evergreen) gave several loaded shipping containers to a trucking company (TCW) at […]
In November 2022, Attorney General Merrick Garland appointed Jack Smith as a special counsel to investigate former President Donald Trump’s attempts to stay in power after the 2020 election. Smith is currently prosecuting Trump in two separate cases, one in Washington, D.C., and the other in Florida. But the Florida prosecution was recently upended by Judge Aileen […]
Statutory mandates to establish minimum thresholds for hazards that pose an unquantifiable risk of harm put regulators in a bind. And the Supreme Court’s administrative law decisions this term have exacerbated the problem. Consider, for example, the FDA’s current struggle to regulate agricultural water quality. Fresh produce, once considered the healthiest of foods, has become a major […]