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Overturning Auer Deference

Bryan Weir August 22, 2017
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In conjunction with the Supreme Court Clinic at Antonin Scalia Law School, Garco Construction, Inc. has filed a petition for writ of certiorari asking the Supreme Court to overturn the doctrine commonly known as Auer deference. Put simply, Auer deference—sometimes called Seminole Rock deference—requires federal courts to uphold an agency’s interpretation of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”[1] Experience has shown this form of deference can be quite pernicious and Garco’s dispute with the government in this case is just the latest example. [Read More]

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Agency Doesn't Need Public Permission to Withdraw Proposed Regulations
Photo Credit: NRDC (link)

Examining Agency Authority: Mexichem Fluor, Inc. v. EPA - DC Circuit

Alexander Kritikos August 21, 2017
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In a nearly 30 year old Duke Law Journal article, Justice Scalia asked with regard to Chevron deference, “How clear is clear?” Last week in Mexichem Fluor, Inc. v. EPA, Judges Brett Kavanaugh and Robert Wilkins took opposing views on whether section 612 of the Clean Air Act is clear enough to stop at Chevron’s first step. That section provides in part that ozone-depleting substances “shall be replaced by chemicals, product substitutes, or alternative manufacturing processes that reduce overall risks to human health and the environment.”

Despite the EPA’s statements over the years that section 612 doesn’t give the agency authority to require the replacement of non-ozone-depleting substances, that’s just what the EPA did in 2015. After the EPA concluded that hydrofluorocarbons (HFCs) contribute to climate change (but don’t deplete the ozone layer), the agency promulgated a final rule that moved HFCs from the list of safe substitutes to prohibited substitutes.

  [Read More]

News

Public Health Epidemics – Warning: This Litigation “Cure” Could Kill an Economy

Margaret A. (Peggy) Little August 17, 2017
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A recent article in the Financial Times, Drug Industry faces ‘tidal wave’ of litigation over opioid crisis (subscription may be required), notes that officials at every level of government – states, cities and counties – are launching suits against companies that make or distribute opioids seeking a tobacco-style settlement to help deal with the epidemic.   Noting that these suits are a harbinger of the quarter of a trillion dollar tobacco settlement, government entities like the District of Columbia are putting out requests for proposals inviting firms to bid for contracts that will generate up to $45 million in contingency fees for the successful bidders.

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State Courts & AGs

Wisconsin Supreme Court - State Court Docket Watch News Clips: 8/11/2015
Photo Credit: "Wisconsin Supreme Court" by Royalbroil via Wikimedia Commons (link)

Docket Watch: Wisconsin Court of Appeals Strikes Down Noneconomic Damages Cap

Andrew C. Cook August 11, 2017
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Wisconsin’s statutory cap on noneconomic damages for medical malpractice cases has taken many twists and turns over the past 30 years. A recent state court of appeals decision in Mayo v. Wis. Injured Patients & Families Comp. Fund has added to this seemingly never-ending saga by striking down the legislatively enacted $750,000 cap on noneconomic damages. The Supreme Court of Wisconsin will likely have the final say.

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Announcing the Article I Initiative Writing Contest

Nathan Kaczmarek August 10, 2017
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The Federalist Society's Article I Initiative is focused on the critical issue of why the modern Congress is not functioning as the most powerful branch as envisioned by the Framers. In order to help engage new thought and discussion about the proper role of the Congress, the Initiative has just launched an exciting new writing contest aimed at younger* thinkers with the theme, "Restoring the Constitutional Congress."

  [Read More]

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FCC Front Door

The Danger Posed by the Growing Administrative State

Randolph J. May August 09, 2017
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My commentary, “The Danger Posed by the Growing Administrative State,” published in the Washington Times on August 2, began this way:

Talk of the “deep state” is much in the air these days. To some, the deep state refers to what they see as a conspiratorial intelligence community leaking secrets. To others, the deep state refers to what they see as an out-of-control bureaucracy out to bury – or at least trump – President Trump’s initiatives.

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Occupational Licensing, Antitrust, and Innovation Panel

Lisa Kimmel August 08, 2017
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While professional licensing can have an important role to play in protecting consumers, the proliferation of state occupational licensing regulations over the past fifty years raises important competition policy concerns. Unnecessary licensing restrictions can hamper free market competition and workforce mobility. Innovation and entry from new business models can suffer.

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News

Harvard Square

Cultural Importance of the New Harvard Law School Dean: John Manning

August 04, 2017
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The disconnect between the legal academy and the world it prepares students for can be stark. By one estimate, only 13% of professors at top-100 law school are conservative. By comparison, approximately 45% of federal circuit judges were appointed by Republicans, with more to come (137 seats lie open to President Trump to fill.) This has more real-world consequences than the political imbalance of, say, your average sociology department: a law school grad appearing before a Bush-appointed judge, who is not thoroughly familiar with originalist or conservative thinking, will not be best able to represent their client.

It was therefore a welcome surprise when, in early June, Harvard Law School named a conservative as its next dean. That HLS did this at a moment of increasingly acute partisan divide on campuses and in the country at large only underscores the importance, and boldness, of the move.

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State Courts & AGs

Docket Watch: PA Supreme Court Reinvigorates State's 1971 Environmental Rights Amendment

Joel R. Burcat, Andrew T. Bockis August 04, 2017
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In Pennsylvania Environmental Defense Foundation v. Commonwealth,[1] the Pennsylvania Supreme Court overturned the standard that had been applied by the courts since 1973 when they review governmental determinations under Pennsylvania’s Environmental Rights Amendment (“ERA”). In so doing, the Court effectively re-set and re-established the ERA which was ratified in 1971.

Imagine taking a relic of 1971, plucking it out of that time, and dropping it down in 2017. Would it seem out of place? Would it have any relationship to the current social and political climate? For most of its history, Pennsylvania’s ERA had virtually no significant impact and was considered by the courts to be mostly aspirational. Until now.

  [Read More]

News

SEC building

SEC Report: Cryptocurrencies as Securities?

Jerry Brito August 03, 2017
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Cryptocurrencies and open blockchain networks have made possible a new way to raise money to develop and maintain novel products and services—whether devices on the Internet of Things, new cloud services on the Internet, or even financial products and investments. This unprecedented form of crowdfunding, colloquially known as "Initial Coin Offerings," raises various legal and policy questions, and developers and investors are eager to have answers to these questions so that they can safely take advantage of this innovative model. 

  [Read More]

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