Search Results for ‘philip hamburger administrative’

Regulation and administrative law roundup

  • 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 law roundup

“Is Administrative Law Unlawful?”

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.

Procedure and administrative law roundup

  • “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]

New: Cato Supreme Court Review (including me on gerrymandering and the Constitution)

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

The Battle for the Court: Politics vs. Principles by Roger Pilon
Introduction By Ilya Shapiro

ANNUAL KENNETH B. SIMON LECTURE

The Administrative Threat to Civil Liberties by Philip Hamburger

IMMIGRATION AND NATIONAL SECURITY

The Travel Bans by Josh Blackman

POLITICAL GERRYMANDERING

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

To Speak or Not to Speak, That Is Your Right: Janus v. AFSCME by David Forte

NIFLA v. Becerra: A Seismic Decision Protecting Occupational Speech by Robert McNamara and Paul Sherman

Regulation of Political Apparel in Polling Places: Why the Supreme Court’s Mansky Opinion Did Not Go Far Enough by Rodney A. Smolla

FEDERALISM AND GOVERNMENT STRUCTURE

Betting on Federalism: Murphy v. NCAA and the Future of Sports Gambling by Mark Brnovich

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

NEXT YEAR

Looking Ahead: October Term 2018 by Erin E. Murphy

November 22 roundup

Cato Constitution Day videos

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.

September 20 roundup

  • 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]

December 23 roundup

Federal court: SEC cannot use employees as judges

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.