- Supreme Court could help rein in the administrative state by overruling Auer v. Robbins (1997), which directs courts to defer to agencies’ interpretations of their own regulations [Ilya Shapiro, Trevor Burrus, and William Yeatman on Cato amicus brief in Kisor v. Wilkie, earlier] “Does Kisor Really Threaten the Foundations of Administrative Law?” [William Yeatman]
- “What Is Regulation For?” [video panel from Federalist Society National Lawyers’ Convention with Richard Epstein, Philip Hamburger, Kathryn Kovacs, Jon Michaels, moderated by Hon. Britt Grant] Plus, panel on the use of adjudication in place of rulemaking [Jack Beermann, Allyson Ho, Stephen Vaden, Chris J. Walker, moderated by Hon. Gregory Katsas; Antonin Scalia, “Making Law Without Making Rules,” Regulation magazine 1981]
- “Businesses in regulated industries rely on the regulating agency’s advice to make decisions.” But if advice from agency staff can neither be relied upon for legal purposes nor be subject to judicial review, isn’t it worse than getting no advice at all? [Ilya Shapiro on Cato cert amicus brief in Soundboard Association v. FTC]
- “Administrative Law’s Assault On Civil Liberty: Lucia Vs. SEC” [Margaret Little, Federalist Society, earlier]
- Identifying regulations that disproportionately harm the poor [Cato Daily Podcast with Ryan Bourne, Vanessa Brown Calder, Diane Katz, and Caleb Brown]
- Seek permission to innovate, or innovate first and then seek forgiveness? How startups manage regulators [Sam Batkins, Regulation reviewing Regulatory Hacking by Evan Burfield with J.D. Harrison] Sides tend to switch on this each time White House changes partisan hands, so now it’s the left-liberals who see a silver lining in agencies’ procedural ossification [Stuart Shapiro, Regulation]
- “”Administrative State Is THE Leading Threat to Civil Liberties of Our Era'”: Nick Gillespie interview with Philip Hamburger at Reason;
- Beyond the deference debates: White House Counsel Don McGahn speaks on Chenery I v. Chenery II, fair notice and retroactivity [Aaron Nielson, Yale Journal on Regulation “Notice and Comment”; related, Josh Blackman] Federalist Society convention videos includes panels on the administrative state and agencies and the judiciary with Steven Calabresi and Gillian Metzger, Congress with C. Boyden Gray and Keith Whittington, the executive branch with Susan Dudley and Neomi Rao, and recent regulatory rollbacks with John Allison and Philip Hamburger;
- Michael Rappoport writing at Law and Liberty lately on such topics as reconfiguring administrative law to promote deregulation, a reformed REINS Act, insisting on stricter separation of powers within agencies including adjudication, and deference doctrines including Chevron (contra preferentum? No thanks), Auer (shares Chevron’s faults) and Skidmore (demonstrations of agency expertise). And Michael Greve on some historical and comparative-law perspectives;
- CSAS (George Mason/Scalia Law) December conference on judicial review of agency action with papers by Jerry Ellig and Reeve Bull, Kristin Hickman and Mark Thomson, Aaron Nielson, Nicholas Parrillo, and Jeffrey Pojanowski, full conference and video links with Andrew Grossman, Adam White, and many others;
- Manipulable: recent Section 8 housing case points up “how easily courts can side-step Auer deference if they have a mind to do so” [Rick Hills, PrawfsBlawg]
- Digital Realty v. Somers, on SEC definition of Dodd-Frank whistleblower, could give Justice Gorsuch an opening to strike blow against excessive judicial deference to agencies [Ilya Shapiro]
Columbia lawprof Philip Hamburger is out with a book of high importance on the administrative state and the legality of its actions, and Cato had him in to speak earlier this month, with D.C. Circuit Judge Stephen Williams commenting and Cato’s Roger Pilon moderating (video, podcast links). The event description:
When law in America can be made by executive “pen and phone” alone — indeed, by a White House press release — we’re faced starkly with a fundamental constitutional question: Is administrative law unlawful? Answering in the affirmative in this far-reaching, erudite new treatise, Philip Hamburger traces resistance to rule by administrative edict from the Middle Ages to the present. Far from a novel response to modern society and its complexities, executive prerogative has deep roots. It was beaten back by English constitutional ideas in the 17th century and even more decisively by American constitutions in the 18th century, but it reemerged during the Progressive Era and has grown ever since, regardless of the party in power.
Earlier here, etc.
- “Venue matters.” Enough to double value of med-mal case if filed in Baltimore city rather than suburbs? [Ron Miller] Mark Behrens and Cary Silverman on litigation tourism in Pennsylvania [TortsProf]
- “Maybe [depositions] are like what some people say about war — vast periods of boredom interrupted by brief moments of terror.” [Steve McConnell, Drug and Device Law, also see Max Kennerly]
- Centrality of procedure in American legal thinking dates back to Legal Realists and before [Paul McMahon, U.Penn. J. of Int’l Law/SSRN via Mass Tort Prof]
- Company sues to challenge CPSC’s dissemination of unproven allegations about it in new public database: should judicial proceeding keep its name confidential? [Fair Warning]
- Thesis of new Jerry Mashaw book: administrative state in U.S. long predated Progressive Era [Law and Liberty: Joseph Postell, Mike Rappaport] Relatedly, hallmark of administrative state said to be “prerogative,” i.e., power to make binding rules without new legislation [Michael Greve]
- Lorax standing humor: even the Ninth Circuit might not have been able to help [Howard Wasserman, Prawfs]
- “Formalism and Deference in Administrative Law” [panel at Federalist Society National Lawyers’ Convention with Philip Hamburger, Kristin Hickman, Thomas Merrill, and Jide Okechuku Nzelibe, moderated by Jennifer Walker Elrod]
On Monday the Cato Institute published its annual Cato Supreme Court Review for the 2017-18 Supreme Court term. Included is my 7,000-word article on the Supreme Court’s cases last term on partisan gerrymandering, Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Several people have told me that I managed to make a dry and complicated subject understandable and even entertaining, which I take as the highest compliment.
The entire CSCR is online, and here are its contents. I assisted in the editing of the pieces by Joseph Bishop-Henchman on the Internet sales tax case South Dakota v. Wayfair, and by Jennifer Mascott on the government-structure case Lucia v. SEC.
FOREWORD AND INTRODUCTION
ANNUAL KENNETH B. SIMON LECTURE
The Administrative Threat to Civil Liberties by Philip Hamburger
IMMIGRATION AND NATIONAL SECURITY
The Travel Bans by Josh Blackman
The Ghost Ship of Gerrymandering Law by Walter Olson
THE CRIMINAL LAW
Katz Nipped and Katz Cradled: Carpenter and the Evolving Fourth Amendment by Trevor Burrus and James Knight
Class v. United States: Bargained Justice and a System of Efficiencies by Lucian E. Dervan
THE FIRST AMENDMENT AND THE CULTURE WARS
Masterpiece Cakeshop: A Romer for Religious Objectors? by Thomas C. Berg
NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman
FEDERALISM AND GOVERNMENT STRUCTURE
Internet Sales Taxes from 1789 to the Present Day: South Dakota v. Wayfair by Joseph Bishop-Henchman
“Officers” in the Supreme Court: Lucia v. SEC by Jennifer Mascott
Looking Ahead: October Term 2018 by Erin E. Murphy
- Steven Wise and his Nonhuman Rights Project are back with another animal rights suit, this time claiming to represent elephants against small Connecticut zoo [Ted Folkman, Wesley Smith]
- Thomas Hemphill reviews Philip Hamburger mini-volume The Administrative Threat, which summarizes arguments from Hamburger’s magnum opus Is Administrative Law Unlawful? [Cato Regulation mag]
- Dialing for dollars: plaintiff who’s filed 80 lawsuits can proceed under Telephone Consumer Protection Act even if he purposely placed himself in harm’s way [John O’Brien, Chamber-backed Legal NewsLine/Forbes] Plus: Nov. 27 update;
- Occupational licensure, college free speech, Roy Moore’s Anne Arundel council chum, and more in my latest Maryland policy roundup [Free State Notes]
- New Cato Institute podcast series Cato Out Loud consists of print publications in audio format, give it a try;
- Remember the panic over tax inversions? “Anti-Inversion Regulation Invalidated in Federal Court” [Elizabeth Chorvat, Tax Notes]
There goes the rest of your weekend: the videos of Cato’s Constitution Day conference are now online.
I moderated the third panel, on “Property, Religious and Secular,” with Roger Pilon, Vice President for Legal Affairs at Cato; Prof. Rick Garnett, Notre Dame Law School; and Goodwin Procter LLP partner Thomas Hefferon, discussing Murr v. Wisconsin (land and regulatory takings), Trinity Lutheran (state aid to otherwise qualifying church playground, and Miami versus Wells Fargo and Bank America (scope of damages in fair housing mortgage suit).
NYU law professor Philip Hamburger delivered the annual Simon Lecture on “The Administrative Threat To Civil Liberties.”
Full set of videos, including three other panels, here.
- Relatively funny, clever, and pleasant nastygram, as nastygrams go, on Netflix “Stranger Things” pop-up [BGR]
- “Taser: Can’t say our weapons killed somebody unless the autopsy says so. Also Taser: If the autopsy blames our weapon, we might sue you.” [@bradheath on Jason Szep, Tim Reid, and Peter Eisler Reuters investigation]
- Fourth Circuit asked to overturn forfeiture of antiquarian coins seized under “cultural patrimony” law [Peter Tompa, Antique Coin Collectors Guild]
- Videos from April conference at Scalia/George Mason on due process and the administrative state: Neomi Rao, Philip Hamburger, Gary Lawson, Ronald Cass, Jonathan Adler, Hon. Doug Ginsburg, and many other stars;
- Nice try, censorship fans: study from Stanton Glantz et al. tries to link teen smoking to movie depictions of smoking, resulting in epic fail [Brad Rodu]
- Facebook weeds out a million accounts a day, some in error. Takedown laws will lift false positive rate [Mike Masnick]
- Russian man sues developer of videogame Fallout 4, saying he lost wife and job due to addiction to playing it [BGR]
- “Indiana Briefly Considered Fining Bad Anthem Singers” [Lowering the Bar] Relatedly, if you’ve been wanting to do a dance remix of “Star-Spangled Banner,” Michigan law now permits it [Lowering the Bar]
- Is administrative law unlawful? Philip Hamburger vs. Adrian Vermeule [more, William Funk/Jotwell and David Bernstein; earlier here and here]
- Will Louisiana Attorney General Buddy Caldwell runoff loss end his office’s contracts-for-pals “Buddy System”? [Chris Butler/Louisiana Watchdog, Richard Miniter, American Media Institute/Louisiana Record, Eric Boehm/Louisiana Watchdog]
- “Let’s get rid of private housing.” The Nation never gives up, does it?
- Congress’s surrender of power of purse opened door to outrages like Department of Justice’s activist slush funds [Randal John Meyer]
- Gun-rights and marijuana advocates set themselves against liberty generally when they back discrimination-law coverage of employee “off-duty conduct.” [Ohio, Jon Hyman first (firearms) and second (pot) posts]
The Securities and Exchange Commission practice of trying many complaints before administrative law judges (ALJs) who are its own employees, rather than before federal courts, has grown increasingly controversial lately and now one defendant’s challenge to the practice has prevailed — at least for the moment. A federal judge in Atlanta has ruled that because ALJs are “inferior officers” under the constitution, they cannot be simply employed like other federal workers by an agency like the SEC. Writes Thaya Knight at Cato, “there is a fairly easy fix available to the SEC: the five commissioners can simply appoint the existing ALJs to their current positions…. [but] other agencies could face greater difficulties.” But Daniel Fisher quotes Prof. Philip Hamburger as saying the ruling could still prove “profoundly important,” leading to the unraveling of other aspects of administrative law arrangements within agencies. More: W$J (commission fighting off at least seven legal challenges; in one instance it “asked one of its own judges to submit a formal statement about whether he has ever felt pressure to favor the agency”), Adam Zimmerman/PrawfsBlawg.