Week in Review

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The Trump Administration restricts travel from Europe, Congress blocks rule limiting student debt relief, and more…

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IN THE NEWS

WHAT WE’RE READING THIS WEEK

  • In an article published in the Columbia Law Review, Professor Herbert Hovenkamp of the University of Pennsylvania Law School highlighted the novelty of the U.S. Supreme Court’s Apple v. Pepper decision. Hovenkamp stated that Apple created a categorical rule that whoever pays money directly to a defendant should be counted as a direct purchaser and, therefore, eligible to collect damages. He noted that the Supreme Court’s Illinois Brick v. Illinois decision from forty years ago substantially narrowed who could be considered a direct purchaser by limiting it only to the first purchaser in line. Under Illinois Brick, anyone else was ineligible to collect damages. Hovenkamp supported the Apple decision for eliminating the “irrationalities” of the Illinois Brick decision.
  • In a new report for the Center for American Progress, Andres Vinelli, Christian E. Weller, and Divya Vijay evaluated the domestic economic impact of COVID-19. Vinelli, Weller, and Vijay emphasized the limited utility of using economic consequences of the 2003 SARS outbreak as a model for 2020, noting the anticipated impact of coronavirus on supply chains and financial markets. Although they applauded the Federal Reserve Board for lowering interest rates, Vinelli, Weller, and Vijay concluded that Congress and the Trump Administration must implement economic stimulus policies to ease impacts on business and vulnerable groups.
  • Well-established legal doctrines that require judges to defer to the decisions of administrative agencies have come under increasing pressure from critics who claim that, by deferring to agencies, judges abdicate their constitutional duty to interpret the law. In a forthcoming article for the Michigan Law Review, Professor Daniel E. Walters of Penn State Law argued that critics of judicial deference are internally inconsistent. Although they presume that eliminating deference will empower judges to combat regulatory overreach by administrative agencies, they often fail to grasp that the lack of deference would equally apply to instances of agency underregulation. The result, he suggested, is a deeply asymmetrical vision of administrative law—one that is systematically biased against government regulation.

FLASHBACK FRIDAY

  • In a 2014 essay for The Regulatory Review, Jacqueline Best of the University of Ottawa described a shift in development organization and agency governance that reflects a willingness to admit organizational failure. In contrast with the “development success” model of the 1980s, Best argued, in the last 30 years organizations have shown at least cautious willingness to recognize geopolitical uncertainty and an associated risk of failure of organizational initiatives. Despite this shift, Best concluded, organizations and agencies must become less cautious and more transparent in recognizing and learning from failed ventures.