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TOTM The U.S. Supreme Court’s recent decision in Loper Bright v. Raimondo may have added a new wrinkle to the decades-long fight over whether broadband internet-access services should be classified . . .
The U.S. Supreme Court’s recent decision in Loper Bright v. Raimondo may have added a new wrinkle to the decades-long fight over whether broadband internet-access services should be classified as “telecommunications services” under Title II of the Communications Act.
Read the full piece here.
TOTM In yesterday’s Agencies Roundup, I discussed the likely fate of the Federal Trade Commission’s (FTC) new rule banning most noncompete agreements, read through the lens of the . . .
In yesterday’s Agencies Roundup, I discussed the likely fate of the Federal Trade Commission’s (FTC) new rule banning most noncompete agreements, read through the lens of the Supreme Court’s Loper Bright decision. I thought the rule infirm to begin with—a somewhat foolish swing for the fences on a regulation that the FTC couldn’t possibly enforce. I thought that the FTC’s prospects looked dimmer still in the wake of Loper Bright. As I wrote yesterday…
TOTM The recently completed U.S. Supreme Court session appears to have upended the administrative state in some pretty fundamental ways. While Loper Bright’s overruling of Chevron attracted the most . . .
The recently completed U.S. Supreme Court session appears to have upended the administrative state in some pretty fundamental ways. While Loper Bright’s overruling of Chevron attracted the most headlines and hand-wringing, Jarkesy will have far-reaching effects across both the executive and judicial branches. Even seemingly “small” matters such as Ohio v. EPA and Corner Post will color agency rulemaking and enforcement. And Fischer v. United States could have an impact on statutory construction going forward.
Popular Media On Friday June 28, the Supreme Court issued their 6-3 ruling in Loper Bright Enterprises v. Raimondo, overturning the deference to administrative agencies established in the . . .
On Friday June 28, the Supreme Court issued their 6-3 ruling in Loper Bright Enterprises v. Raimondo, overturning the deference to administrative agencies established in the Chevron v. Environmental Protection Agency ruling in 1984. So far opinions vary on how big a change this will ultimately be (courts have not been relying much on Chevron deference in the past 8 years) and whether the change will be beneficial or costly.
Read the full piece us.
TOTM In an Agencies Roundup post several weeks ago, I revisited the Federal Trade Commission’s (FTC) newly adopted—and not-yet-effective—rule barring the use of noncompete agreements across much of the . . .
In an Agencies Roundup post several weeks ago, I revisited the Federal Trade Commission’s (FTC) newly adopted—and not-yet-effective—rule barring the use of noncompete agreements across much of the U.S. economy. It was not my first such post (my ninth, if I’ve counted correctly, and if readers will forgo armchair diagnoses of monomania). The last time around, I noted consolidated challenges to the rule being heard in the U.S. District Court for the Northern District of Texas, where Judge Ada Brown has said that he will issue a decision on the motion for a stay of the rule’s effective date by July 3.
TOTM This essay began as a response to claims that the argument that Chevron encourages congressional inaction has been refuted by the best available evidence. That Chevron causes such inaction . . .
This essay began as a response to claims that the argument that Chevron encourages congressional inaction has been refuted by the best available evidence. That Chevron causes such inaction is one of the arguments made by petitioners in Loper Bright. Leading scholars reject the argument. For instance, Chris Walker has called it one of the “least persuasive points” made at oral argument and Jim Speta has called it “empirically untrue.” Last year, Nicholas Bednar had a very good essay at Notice & Comment arguing that whether Chevron in fact has this effect is an empirical question. He went on to review literature related to (his framing of) this question and concluded by finding that the claim is unsupported and suggesting that its proponents lack candor.
TOTM I’ll start with a bit of half-empty, half-full (and very partial) resolution in Federal Trade Commission (FTC) publicity. Losing by Winning or Just Losing or . . .
I’ll start with a bit of half-empty, half-full (and very partial) resolution in Federal Trade Commission (FTC) publicity.
A couple of weeks ago, the Wall Street Journal editorial board announced that:
“Another Lina Khan Theory Loses in Court”
And that was right, up to a point (leaving aside the question of theory ownership). The FTC had suffered a setback in its antitrust case against Welsh, Carson, Anderson & Stowe and U.S. Anesthesia Partners, in which the agency alleged a “multi-year anticompetitive scheme to consolidate anesthesia practices in Texas, drive up the price of anesthesia services provided to Texas patients, and increase their own profits.”
Popular Media In its brief history, the Consumer Financial Protection Bureau (CFPB) has been the subject of three of the most important separation of powers cases in . . .
In its brief history, the Consumer Financial Protection Bureau (CFPB) has been the subject of three of the most important separation of powers cases in the last half century. In the first two cases, NLRB v. Noel Canning (2014), which addressed the recess appointment power of the President, and Seila Law LLC v. Consumer Financial Protection Bureau (2020), which dealt with the authority of the President to remove a sitting head of a single-member independent agency, the Supreme Court sided with the challengers.
TOTM The sweeping prohibition on noncompete agreements promulgated by the Federal Trade Commision (FTC)—which would nullify 30 million contracts and preempt the laws of 46 states if it . . .
The sweeping prohibition on noncompete agreements promulgated by the Federal Trade Commision (FTC)—which would nullify 30 million contracts and preempt the laws of 46 states if it takes effect, as scheduled, on Sept. 4—is set for its first judicial test. In Ryan, LLC v. FTC, Judge Ada Brown of the U.S. District Court for the Northern District of Texas has indicated that she expects to rule on the plaintiffs’ motions for a stay of the effective date and for a preliminary injunction by July 3. Expedited proceedings in the U.S. Court of Appeals for the 5th Circuit, and perhaps the U.S. Supreme Court, are likely to follow.
