On the Future of the Chevron Doctrine

J. Kennerly Davis

September 5, 2018

Joel Nolette is a litigation attorney at Mintz Levin in Boston, and an active member of the Administrative Law & Regulation Practice Group, currently serving on its Executive Committee.

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When Is a Bureaucracy So Independent That It’s Unconstitutional?

Alex J. Pollock

July 24, 2018

In a conceptually important opinion, the Fifth Circuit Court of Appeals has just ruled that the governance structure of the Federal Housing Finance Agency (FHFA) is unconstitutional.

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Another Court Rules Against Regulation-by-Litigation in Climate Change Public Nuisance Lawsuits

Donald Kochan

July 20, 2018

On July 19, the U.S. District Court for the Southern District of New York dismissed the lawsuit brought by the City of New York and others against several large oil companies.  The lawsuit claimed those companies were responsible for public and private nuisances under federal common law for the transboundary effects of emissions causing climate change.   These municipality lawsuits for climate change are the subject of a Federalist Society Environmental Law & Property Rights Practice Group podcast  from  July 3, titled “Municipality Lawsuit on Climate Change and Public Nuisance: Litigation Update.”

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The Dangers of Independence for Executive Branch Agencies

Peter Wallison

July 19, 2018

There may be cases where executive branch officials need to be independent of the president, but they are likely to be exceedingly few. The Supreme Court, if it takes an appeal from the 5th Circuit’s decision, should approach the issue from this perspective.

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N. District of California: Elected Branches of Government Are the Proper Channels for Addressing Climate Change

Andrew Varcoe

July 12, 2018

In a trenchant Los Angeles Times opinion piece, Chapman University law professor and constitutional law expert Donald Kochan assesses an important recent decision rendered by Judge William Alsup of the U.S. District Court for the Northern District of California in two controversial climate-change lawsuits brought by Oakland and San Francisco against a small subset of the world’s energy companies.

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Trump Administration Withdraws Guidance on Affirmative Action In Admissions

Alison Somin

July 11, 2018

On Wednesday, July 3, the Departments of Education and Justice announced that they withdrew a group of Obama-era guidances regarding the use of race in school admissions.

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Anyone Know a Good Tailor?

Wayne A. Abernathy

June 28, 2018

It is difficult to find a public statement by a financial services policymaker these days where the policymaker does not invoke the importance of tailoring bank regulation and supervision.  This is major progress from the days of one-size-fits-all programs.  A fundamental characteristics of the U.S. banking system is its diversity of business models, developed over the years to match the diversity of financial services customers.  Can bank supervision be tailored to accommodate that diversity?

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Modern Privacy Advocacy

Matthew R. A. Heiman

June 12, 2018

In their thought-provoking essay, Gus Hurwitz and Jamil Jaffer explain that orthodoxy in the defense of privacy, a term that is ill-defined, may undermine the very value it tries to serve.

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Management’s Duty to Restore The Rule of Law

J. Kennerly Davis

June 6, 2018

Springtime is the season when most American corporations hold their annual meeting of shareholders.  In the course of a typical meeting, board directors will be elected and independent auditors will be appointed.  Management will report on operating results and earnings for the fiscal year recently ended, and will outline their strategic business plans for the future.  In their presentations, management will make the case that they are fulfilling the fundamental fiduciary duty they have to promote the best interests of the corporation and maximize shareholder value.

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Why is EPA’s Transparency Proposal Controversial?

Eileen J. O'Connor

May 24, 2018

The proposed rule was welcomed by those who believe it will improve rulemaking and public understanding of it.

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