While I Was Away

Penn Law’s blog on regulation has published an interesting series of posts on Mitt Romney’s regulatory policy, collected here. Gold star to Ron Cass, who identifies the malleability of cost-benefit analysis and suggests: “presidential enthusiasm for or suspicion of regulation (or sensitivity to particular aspects of it) can significantly affect how administrative agencies go about their business”.

Staying in the United States, the Supreme Court issued a decision on the Federal Communications Commission’s obscenity standards. As discussed here, the outcome was that the standards were unconstitutionally vague. Interestingly, this decision makes it twice that the Supreme Court has refused to consider the substance of broadcasters’ complaints that the standards are an unconstitutional limitation of their freedom of speech: in 2009, the Court held (on administrative law grounds) that the FCC’s decision to firm up its standards was lawful.

That Court also found time to question so-called Auer deference, a topic to which I shall return.

Across the Atlantic, Cambridge University Press published my A Theory of Deference in Administrative Law: Basis, Application and Scope. Much more on that in the coming weeks: you have been warned.

While there, Anthony Bradley’s paean to the Administrative Court is worth reading.

In Ireland, an interesting judicial review application commenced yesterday. Treasury Holdings claims that the decision of the National Asset Management Agency (the government-established body/”bad bank” to which a huge portfolio of bank loans have been transferred) was unreasonable and procedurally unfair. The most interesting aspect is whether NAMA is under a duty to act in a commercial reasonable and fair manner. Coverage from the Irish Times of the first day of hearings here, the author noting the crowd-evaporating power of administrative law: “The hearing was well attended in the morning but the crowd had thinned out after lunch as the dry and technical nature of Mr Cush’s submission took its toll”.

Oh, and the Supreme Court of the United States also decided whether President Obama’s health care reform was constitutional. The only surprise was that the Internet did not spontaneously combust in the aftermath.

This content has been updated on June 11, 2014 at 09:48.