Vermont Yankee is having a renaissance that few are noticing. That canonical 1978 case conventionally stands for the proposition that agencies are generally free to fashion their own procedures. Although one might think that today’s Supreme Court would view that pro-agency doctrine skeptically, the opposite is true. In the last ten years, many of the…
In December 2023, the Department of Justice and the Federal Trade Commission issued the eighth iteration of the Merger Guidelines—guidance documents that outline the antitrust agencies’ priorities when reviewing a merger or acquisition. These documents are not legally binding. And yet over the past fifty years, courts have heavily relied upon the Guidelines to decide…
Legislative privilege shields legislators from discovery on acts related to their legislative functions. While the Constitution’s Speech or Debate Clause affords this privilege to federal legislators, protections for state legislators instead arise from the federal common law. The Supreme Court has long recognized that the state privilege yields to important federal interests—including the need to…
Environmental criminal liability plays an important role in deterring corporate polluters and motivating regulatory compliance. Accordingly, the Clean Water Act (CWA) requires states to apply criminal enforcement standards at least as stringent as the federal standards. For decades, however, the U.S. Environmental Protection Agency (EPA) has been undermining CWA enforcement by approving state permit programs…
