Much has been written lately about companies’ unwillingness to invest or create new jobs in California. 2010 was the first census in which California did not add a member of Congress. Other states, including Texas, are seeing large influxes of new jobs and people. Some have suggested that California law (as passed by the legislature and as made by the courts) contributes to a negative business climate that discourages investment and job creation. This panel will look at California laws involving employment issues, tort liability, and environmental regulation and compare California’s approach to those of other states, including Texas to determine whether the law has become an impediment to job creation in California. This panel was featured at the Sixth Annual Western Conference on January 28, 2012. Featuring Mr. William J. Emanuel of Littler Mendelson PC; Mr. Jed Kolko of Trulia; Mr. H. Scott Leviant of Spiro Moss LLP; Mr. David A. Schwarz of Irell & Manella LLP; Ms. Kate Comerford Todd of the National Chamber Litigation Center; and Judge Carlos T. Bea of the  U.S. Court of Appeals for the Ninth Circuit as the moderator. Introduction by Mr. Leonard A. Leo, Executive Vice President of The Federalist Society.

On December 2, 2011, the United States House of Representatives passed the Regulatory Accountability Act of 2011 (H.R. 3010). This legislation would amend the Administrative Procedure Act (APA), which governs the federal rulemaking process. It would codify existing rulemaking requirements contained in executive orders and create new rulemaking requirements. In this paper, Mr. Daren Bakst provides a summary and explanation of the legislation's key provisions and their potential implications on the rulemaking process. 

In the past few decades, the practices and doctrines governing the interpretation and administration of the federal tax code have diverged somewhat from general administrative law doctrines and norms in several ways. No one doubts that the Administrative Procedure Act (“APA”) applies to federal tax administration. No one questions that Treasury regulations interpreting the Internal Revenue Code (“IRC”) are legally binding on all taxpayers. Nevertheless, while the standard of judicial review for most agency regulations that carry such legal force derives from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., at least until very recently, many tax lawyers, the United States Tax Court, and some circuit courts maintained that an arguably less deferential standard articulated prior to Chevron in the tax-specific case of National Muffler Dealers Ass’n, Inc. v. United States applied to most tax regulations. [Read more!]

The National Environmental Policy Act requires federal agencies to ascertain and evaluate the possible environmental effects of federally regulated energy infrastructure proposals. But this broad statutory requirement leaves great uncertainty as to which hypothetical risks of environmental harm must be evaluated, and which risks may be set aside as too contingent or otherwise improbable to merit review. Recent events—the Japanese tsunami that disrupted a nuclear power plant, for example, or the deepwater Gulf of Mexico oil spill—remind us that seemingly unthinkable disasters can occur, posing a significant threat of harm to the environment. But two recent court of appeals decisions have created a circuit split on the question of precisely how agencies should approach the possibility of low-probability, high-impact events—or, as they have come to be known, “Black Swans.” [Read more!]