As Chris Walker has explained, he and Mike Kagan recently filed this amicus brief urging the Ninth Circuit to rehear en banc a case that involves a question of exceptional importance: how to reconcile Skidmore “respect” for an agency’s interpretation with the central holding of Loper Bright. The amicus brief argues that, in “the guise of giving Skidmore ‘respect’ to a precedential statutory-interpretation decision […]
Unsurprisingly, the D.C. Circuit did not issue any opinions last week (Thanksgiving week). Indeed, the whole month of November was light on opinions, with only two issued, though both were important cases. One was about the power of FINRA (and, by extension, other private regulatory entities), though as my fellow D.C. Circuit Review blogger described, […]
In August 2023, the Fifth Circuit ruled in Nuclear Regulatory Commission v. Texas that the Nuclear Regulatory Commission (NRC) does not have the legal authority to issue licenses for private companies to store spent nuclear fuel at locations away from reactors. The court’s decision rests in part on a cursory and strained application of the major questions […]
It’s the last day of November, and I’m just barely getting this getting the October post up here. It’s been a busy semester, though much to be grateful for. Here is the October 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 […]
Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” This month, we tackle Nebraska v. Su, in which a split three-judge panel sided with the challengers against President Biden’s $15 minimum wage mandate for federal contractors. Besides engendering a direct circuit split, […]
Last Friday, the D.C. Circuit issued its decision in Alpine Securities Corp. v. FINRA, No. 23-5129, a closely-watched case about the authority of the Financial Industry Regulatory Authority (“FINRA”), a private corporation that regulates and oversees large parts of the securities industry. The case raised significant questions about whether FINRA exercises too much executive authority […]
As I mentioned in my preliminary take on the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, the Court overruled Chevron deference but seemed to preserve some sort of Skidmore “weight” or “respect” while carefully refusing to call it judicial “deference.” As I noted in that post, “[i]t will be fascinating to see how […]
The Pacific Legal Foundation (where I work) has issued a call for papers for its upcoming research roundtable on “Rulemaking by Adjudication.” The deadline for proposal submissions is January 10th. Here is an excerpt from the description (full version available at the PLF website):
We appreciate receiving attention, even if critical, from one of America’s most powerful conservative organizations. Americans for Prosperity (AFP), a libertarian and fiscally conservative advocacy group, has been widely recognized as one of the most influential conservative organizations in American politics. While we appreciate the attention Kevin Schmidt and Thomas Kimbrell of AFP have given […]
What if instead of unlawfully abusing emergency powers for bad things, presidents unlawfully abused them for “good” things? That’s the argument Berkeley Law Professors Elena Chachko and Katerina Linos make in their paper “Emergency Powers for Good,” published in the William & Mary Law Review. They reiterate that emergency powers are often abused by democracies and […]
On April 11, 2025, the NYU Law Review and the Institute for Policy Integrity at NYU School of Law will host a full-day symposium that will explore Where Does Administrative Law Go from Here? The symposium will feature a keynote address from Ricky Revesz, currently the Administrator of the Office of Information and Regulatory Affairs and […]
Every administrative law student knows that a private litigant challenging an agency action must first establish an injury-in-fact. But in addition, the zone-of-interests test further requires that the litigant’s interest be “arguably within the zone of interests to be protected or regulated by the statute.” Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 […]
Next month, the Fourth Circuit will consider a legal argument that could help patch the hole ripped open by the Supreme Court in SEC v. Jarkesy. Jarkesy held that agencies seeking to impose monetary penalties on enforcement targets for securities fraud and other common law-ish claims must proceed in federal court, not their own administrative forums. The Fourth […]
Today the D.C. Circuit held that the Council of Environmental Quality (CEQ) lacks statutory authority to issue rules under the National Environmental Protection Act (NEPA). In Marin Audubon Society v. Federal Aviation Authority, the court declined to consider arguments about whether FAA complied with CEQ’s NEPA rules because it found those rules to be ultra […]
From Timothy Lytton on behalf of the Administrative Law Section of the Association of American of Law Schools (AALS): The executive committee of the AALS section on Administrative Law and the award selection committee are pleased to announce that the winner of the 2025 Emerging Scholars Award for Outstanding Scholarly Publication is Brian D. Feinstein […]