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Administrative Law & Regulation

Perez v. Mortgage Bankers Association - Post-Decision SCOTUScast

SCOTUScast 5-4-15 featuring Andy Hessick
Frederick "Andy" Hessick May 04, 2015

On March 9, 2015, the Supreme Court issued its decision in Perez v. Mortgage Bankers Association, a case which concerned the Administrative Procedure Act, or APA.  The question was whether the rule announced by the D.C. Circuit in its earlier case Paralyzed Veterans of America v. D.C. Arena L.P. was consistent with the APA.  Under the Paralyzed Veterans rule, an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted.

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 9-0 that the Paralyzed Veterans rule conflicted with the text of the APA and improperly imposed procedural requirements on agencies beyond those authorized by the statute.  The Chief Justice and Justices Kennedy, Ginsburg, Breyer and Kagan joined Justice Sotomayor’s opinion in full, and Justice Alito joined it except for part III-B.  Justice Alito also filed an opinion concurring in part and concurring in the judgment. Justice Scalia and Justice Thomas filed opinions concurring in the judgment. The judgment of the D.C. Circuit was reversed.

To discuss the case, we have Andrew Hessick, who is a Professor of Law at the University of Utah College of Law.

M&G Polymers USA v. Tackett - Post-Decision SCOTUScast

SCOTUScast 4-23-15 featuring Michael DeBoer
Michael DeBoer April 23, 2015

On January 26, 2015, the Supreme Court issued its decision in M&G Polymers USA, LLC v. Tackett. The issue in this case is whether, when courts interpret collective bargaining agreements in Labor Management Relations Act (LMRA) cases, they should assume that silence concerning the duration of retiree health-care benefits means the parties intended those benefits to vest (and therefore continue indefinitely), or should require that it be stated explicitly (or at least stated in some way) that health-care benefits are intended to endure after the expiration of the collective bargaining agreement. 

In an opinion delivered by Justice Thomas, the Court held unanimously that when determining whether retiree benefits should continue indefinitely after the expiration of a collective bargaining agreement, courts should apply ordinary contract principles.  Those principles do not support a presumption that the agreement reflects an intent to vest retirees with lifetime benefits. The judgment of the Sixth Circuit was vacated and the case remanded for further proceedings. Justice Ginsburg filed a concurring opinion, which Justices Breyer, Sotomayor, and Kagan joined. 

To discuss the case, we have Michael DeBoer, who is an Associate Professor of Law at the Faulkner University School of Law.

The Environmental Protection Agency’s Waters of the United States Rule - Podcast

Environmental Law & Property Rights Practice Group Podcast
Brent A. Fewell, Patrick A. Parenteau April 22, 2015

The Environmental Protection Agency and the Army Corps of Engineers are currently engaged in a controversial rulemaking to redefine its jurisdiction over bodies of water through a new definition of the “Waters of the United States” under the Clean Water Act. Some have criticized the proposed rule, claiming that it is an overreach that would give the federal government authority over huge areas of private and state land that are rarely even wet, while others have dismissed these concerns as overblown and have pointed out the benefits of clarifying what is currently a murky area of law. Our experts discussed the rulemaking and presented both sides of the argument.

  • Brent A. Fewell, Partner, Troutman Sanders LLP
  • Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School

Innovation and Inequality: Conservative and Libertarian Perspectives - Event Audio/Video

2015 National Student Symposium
Richard A. Epstein, Elizabeth Kregor, John O. McGinnis, Frank H. Easterbrook April 17, 2015

We are in an age of accelerating technology but many fear we are also in an age of growing inequality. Does the fast pace of innovation pose a threat to social stability? Many fear that machines will take away jobs from the less skilled and extend the reach of superstars, thus deepening inequality. This panel will address the dangers of innovation to employment and equality and what, if anything, the government should do about it.

  • Prof. Richard Epstein, NYU School of Law
  • Ms. Beth Kregor, Director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago Law School
  • Prof. John McGinnis, Northwestern University School of Law
  • Moderator: Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit

This program was presented on February 21, 2015, as part of the 2015 Federalist Society National Student Symposium.

Innovation and Health Care - Event Audio/Video

2015 National Student Symposium
Peter Huber, Lindsay Kelly, Gerald Masoudi, Thomas B. Griffith April 17, 2015

Given that everyone is getting older and more prone to disease, medical innovation is one of the most important measures, if not the most important measure, of a successful health policy. Technological acceleration, including advances in genomics and stem cell research, suggest that we are on the cusp of a golden age of medical innovation. But government-imposed price controls and other policies can reduce the incentives for devising new treatments, resulting in preventable death and illness. This panel will look at the effect of Obamacare, and the policies of the FDA on innovation. More generally, will the current regulatory processes and reimbursement policies equipped to manage the next generation of personalized medicine and diagnostic devices?

  • Mr. Peter Huber, Senior Fellow, Manhattan Institute
  • Ms. Lindsay Kelly, Special Counsel, Irell & Manella LLP
  • Mr. Gerald Masoudi, Partner, Covington & Burling LLP; former Chief Counsel, Food and Drug Administration
  • Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, District of Columbia Circuit

This program was presented on February 21, 2015, as part of the 2015 Federalist Society National Student Symposium.