Results matching “preemption”

Vinny Sidhu
Legal Intern, Manhattan Institute's Center for Legal Policy

A couple of weeks ago, the California Supreme Court decided a potentially very impactful case dealing with the enforceability of arbitration agreements made between companies and their consumers/employees.

In Sonic-Calabasas A, Inc v. Moreno, the court ostensibly agreed with the U.S. Supreme Court's rulings in Concepcion and Italian Colors Restaurant that federal preemption applied over any state rulings that attempted to control the scope of consumer arbitration agreements under a specific formulation of the unconscionability doctrine.

However, the Sonic court then opened up the door to the potential introduction of a new unconscionability standard that would be substantively similar to the previously-discredited standard.

In the prior U.S. Supreme Court rulings, the Court specifically overruled the Discover Bank rule, which mandated that consumer arbitration agreements that did not include clauses allowing for class action suits were effectively unenforceable. The Supreme Court has held that the Federal Arbitration Act's mandates apply, regardless of any state "substantive or procedural policies to the contrary," including any any specific state standards for arbitration applicability.

Andrew J. Pincus and Archis A. Parasharami of the Mayer Brown law firm have written an op-ed discussing the various issues involved.

American Express v. Italian Colors: Reversal (5-3) - PointOfLaw Forum

Today, the Supreme Court decided American Express v. Italian Colors (PDF) (holding, 5-3, that the fact that necessary expert-witness costs exceed the expected return on low-value individual claims, premised on federal law, does not, under the judicially created "effective vindication" doctrine, mean that arbitration clause class-action waivers are unenforceable). (The justices here lined up in the "usual" way -- with Justice Scalia writing for the majority and Justice Kagan for the dissent; Justice Sotomayor, who considered the case below on the Second Circuit, recused.)

See Ted's earlier posts on the case here (at cert stage) and here (after filings of merits briefs). We also hosted a featured discussion on the case between Ted and Cardozo law professor Myriam Gilles here. And see Ted's Manhattan Institute paper on arbitration-clause waivers of class-action remedies here, and reaction here (Greve) and here (Wood).

Because, as Ted has noted, "the litigation lobby has already beat the bushes to create unfair animus against arbitration clauses," it's important to emphasize what the decision says and what it doesn't. Justice Kagan's very well-written dissent to the contrary, the majority opinion does not suggest that companies can invoke any and every arbitration provision to preclude the vindication of federal rights.

Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

Yesterday, the Supreme Court issued its ruling in Arizona v. United States, the case involving Arizona's controversial SB 1070 bill on immigration. By a 5-3 vote, the Supreme Court struck down three of the four provisions that were being challenged in the Arizona law, but unanimously upheld the controversial "check your papers" provision [Section 2(B)].

Adam Freedman, a contributor at and author of the forthcoming book The Naked Constitution, posted a guest commentary on Point of Law reacting to the decision. He also agreed to discuss the case as part of our podcast series.

During the podcast, Freedman discussed the rationale behind the majority's decision to strike down three of the four challenged provisions:

The way the majority reached its decision was by taking a very broad view of preemption. First of all, they weren't just talking about the federal power over naturalization, which is what the Constitution gives Congress ... The majority held that the federal government by virtue of its power over foreign affairs has to have this sort of all-encompassing power over the status of all aliens within our borders. ... What was really shocking was that the Court held that the federal government couldn't conduct foreign policy if states were allowed to adopt laws that might upset foreign governments, or that might inconvenience foreign governments by having to track 50 state laws rather than simply having one-stop shopping and being able to go to the federal government. So the decision really had very little to do with the fundamental structure of federalism; it had more to do with this imagined federal prerogative over foreign policy.

After analyzing the majority and dissenting opinions, Freedman offered this unique take-away:

I think it's a bad day for federalism. Unfortunately, there has been a trend going back for some decades - and it waxes and wanes - but there has been this idea that the federal government can invade state powers by using its foreign affairs prerogative ... Here a court is simply speculating why Congress might need to have exclusive powers for the benefit of the executive branch's foreign affairs powers. I think that's a very dangerous road to go on.

Check back this week for another podcast with Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, on his reactions to the Arizona v. United States decision.

CFPB paternalism - PointOfLaw Forum

Paging Todd Zywicki. CFPB director Richard Cordray complains that 9% of bank customers pay 84% of overdraft fees, with the implication that paternalistic regulation is needed. Of course, as Shannon Phillips points out (via Funnell), what this statistic really reflects is that the vast majority of account holders use their accounts responsibly: if someone in that 9% were to do a better job of balancing their checkbook, they'd move into the 91%. But CPFB regulation (still in a notice and comment procedure, with comments due by June 29), would likely punish the 91% to protect the 9% from themselves. Except that without the overdraft fees, banks will find it unprofitable to serve these customers in the first place, and will instead charge monthly fees that effectively preclude any access to the banking system for both the responsible and irresponsible lower middle class. But at least regulators can feel better that they stopped overdraft fees.

Similarly, Jeff Sovern complains that many consumers and students are cluelessly engaging in complex financial transactions without understanding basic concepts like variable and fixed interest rates. The proposed solution—required use of mortgage counselors—would make mortgages more expensive for everyone, even those responsible citizens who are capable of representing their own interests and making their own choices without the needless additional overhead. Why not let consumers choose for themselves whether they need to hire a financial advisor?

Part of the problem in the mortgage context, I would strongly suspect, is the degree to which meaningful disclosures are buried in meaningless defensive disclosures banks engage in upon risk of class action liability. To take a related example, the pending Supreme Court case of First American Financial Corp. v. Edwards involves a RESPA class action alleging a technical violation of the law without any financial injury; while this is not a disclosure case, it shows the degree to which banks face litigation exposure by entrepreneurial rent-seeking trial lawyers without regard to whether the alleged transaction problem actually harms consumers. The disclosure regime has grown to the extent that it has become counterproductive: even brilliant experienced federal judges find it unprofitable to read the disclosures. Where CFPB could be useful is to create a clear-cut disclosure regime—a page of disclosures—together with preemption precluding lawsuits over the lack of the other 100 pages of disclosures. Earlier.

Obama and gay marriage - PointOfLaw Forum

I'm very surprised that people are treating Obama's public statement as a watershed moment. Obama has publicly supported gay marriage since 1996, and only in recent years has cravenly pretended that he hasn't. Even now, Obama couches his support in terms of "states' rights," a concept the administration has repeatedly rejected, most recently in suits against states attempting to protect against voter fraud. As a policy matter, Obama's "evolution" has no effect: the Department of Justice was already breaking with its obligation to enforce federal law and litigating against DOMA on grounds that would guarantee a constitutional place for gay marriage.

I suppose one could celebrate that gays are now sufficiently accepted within society that the Obama administration felt it was politically more dangerous to continue its disingenuous hypocrisy on the issue than to publicly come out with half-hearted support for gay marriage. (As a political calculation, the Democratic voting bloc most likely to oppose gay marriage—African-Americans—is unlikely to leave Obama, despite the disastrous consequences his policies are having for that community.) And the administration has now successfully distracted the news cycle from the poor economy for a full four days. But they will be hard pressed to complain about the fact that Mitt Romney flip-flopped on social issues to appease his base.

Speaking of upside-down preemption, the United States faced a lot of skepticism from the Supreme Court yesterday over its aggressive attempt to strike down Arizona's anti-illegal-immigration law, SB 1070. As Michael Greve argues, "far from conflicting with federal law, S.B. 1070 complements it." More: Levey; Reason; WaPo; SCOTUSblog.

Earlier on POL: Shapiro podcast; Romney campaign; upside-down preemption; rule of law and the Obama administration.

EEOC "guidance" on use of conviction records - PointOfLaw Forum

Yesterday, the EEOC issued "guidance" (h/t P.T.) on the ability of employers to use conviction and arrest records in hiring. (We'd previously noted EEOC enforcement actions in that regard.) In another example of the Obama Administration's upside-down approach to preemption, the EEOC purports to preempt local laws and regulations forbidding the hiring of criminals if the EEOC believes they contradict Title VII's disparate impact rules; employers are thus in a damned-if-they-do, damned-if-they-don't situation if they follow or don't follow those state laws since they can get sued either way, including massive tort liability for the criminal acts of their employees. And that surely won't have any effect on employers willingness to create jobs, will it?

As Michael Greve notes (h/t OL), administrative agencies have taken advantage of the Chevron and Chevron II framework to evade judicial review of administrative law. This "guidance" outside of formal administrative rule-making is a prime example of that tactic, and validates Greve's argument that "increased judicial conflict over the administrative state" with more rights for the regulated against the regulator needs to be in the offing.

Martin Redish's 2009 Wholesale Justice is an attack on the constitutionality of class actions from the left. Plaintiffs' attorneys do not hesitate to act entrepreneurially and stake out aggressive positions for the expansion of liability. So, Mark Herrmann asks, where are the creative defense attorneys and corporate general counsels trying to build off of Redish to push back on class actions? [Also: Overlawyered; Lahav]

One can be highly skeptical that Redish will do much good at the district-court level. There's already a spectrum of judicial views of the class action, and the judges most likely to give a Redish argument a full airing are the judges who are already fairly applying Wal-Mart and Rule 23 to block abusive class actions. At the margin, Redish adds a lot of cost to develop a particular argument that adds little chance of success at the district court. But as I've argued before, general counsels and their defense attorneys need to be thinking more strategically about their law firms' litigation positions, focusing less on the individual battles, and more about ensuring the legal terrain is favorable. The plaintiffs' bar was able to tilt preemption doctrine in the wrong direction because their advocates were focused on coherent long-term goals, while pharmaceutical companies were hiring generalist Supreme Court advocates with impressive resumes but no history of thinking about these issues. Defendants need to play less whack-a-mole, and more chess: put in the investment at the district-court level to preserve the long-run appellate issue. There is a Supreme Court that has consistently held that the procedural efficiencies of the class action device do not permit the infringement of individual substantive rights, and, with rare exceptions, regularly slapped down lower courts that have tried to take shortcuts. Even if defendants may not have standing to raise some of Redish's arguments, there are surely public-interest organizations willing to represent absent class members who'd be willing to be the ones to float the proposition at the class-certification stage. Ahem.

A Health Affairs study (summarized by Reason) puts to rest the hoary claim that Medicare is more "efficient" than privately administered insurance programs: even without the high corporate executive pay and advertising of private insurance, Medicare's administrative expenses per enrollee are higher than private insurance. And that's before we get into the fact that Medicare underspends on fraud prevention, losing tens of billions a year that way.

Medicaid will get only more expensive if the Supreme Court affirms a Ninth Circuit decision in a pending case, Douglas v. Independent Living Center of Southern California. The Ninth held that Medicaid providers could sue states over their Medicaid reimbursement policies and ask for courts to adjudicate disputes over whether the states were complying with federal law—though the federal law has no such provision for private action. If so, that's a one-way ratchet for increased costs to state and federal taxpayers, with outlays being decided by judges even more unanswerable to voters than the existing regulatory mechanisms. Oddly, the Chamber of Commerce finds itself in the position of supporting an implied cause of action, arguing that one can enforce the Supremacy Clause in any preemption situation. It seems to me that the Solicitor General's brief has the better of the argument in suggesting that Ex parte Young-style suits are limited to cases where plaintiffs are claiming immunity under federal law to state regulatory action, rather than a broad cause of action to resolve inter-governmental disputes. It's hard to see where the Chamber's limiting principle is: if parties can sue states in an implied cause of action to force compliance with the parties' preferred statutory and regulatory construction, why can't parties sue other private parties in Buckman style claims over alleged regulatory non-compliance? So, yes, I'm siding with the Obama administration against the Chamber of Commerce. More: NYT, NCLC resource page; ABA resource page. The case will be argued at the start of the term on October 3.

We've already extensively covered why any reasonable appellate court is going to overturn the $500 million judgment against Teva and Baxter over a (now-criminally-charged) doctor's deliberate misuse of propofol. The Wall Street Journal reports that Jay Lefkowitz of Kirkland & Ellis, who successfully argued that federal law requires preemption of state failure-to-warn claims for generic drugs, given the lack of discretion that such generics have, in Pliva v. Mensing, now has another arrow in his quiver for overturning the earlier miscarriage of justice in Nevada. Alas, a lot of damage has already been done thanks to plaintiffs' lawyers putting profits ahead of people.

Around the web, June 5 - PointOfLaw Forum

Chamber of Commerce v. Whiting - PointOfLaw Forum

Can we now officially end the nonsense that this is a "pro-business" court? In a 5-3 decision authored by Chief Justice Roberts, the Supreme Court rejected the Chamber of Commerce's position that federal law preempted Arizona's E-Verify requirements. The three dissenters siding with the Chamber of Commerce (and, unusually, with federal preemption) were the liberals Breyer, Ginsburg, and Sotomayor. See also Previous discussion of the case on POL; Adler @ Volokh; Whelan; Blackman; Dow Jones]

Somin on federalism and tort reform - PointOfLaw Forum

Ilya Somin @ Volokh:

In this post, I explained why federally mandated tort reform is, in most cases, both constitutionally dubious and unnecessary. The better way to restrict abusive tort suits is through interstate competition combined with constraints on states' ability to regulate conduct outside their borders.

Somin needs to be more specific: the Private Securities Litigation Reform Act was "tort reform," but it was reforming federal securities law, and there was nothing anti-federalist about that.

When it comes to product liability, it's nice for Somin/Barnett libertarians to say that the real problem is long-arm personal jurisdiction. I don't disagree (I'd go further and say Erie's abolition of federal common law has substantially contributed), but there isn't a solution to that: that ship has sailed, and there's no chance of that problem being fixed in my lifetime. Meanwhile, we have states racing not to provide friendly business environments, but racing to extract the gains from interstate commerce for their own citizens through inefficient product liability law. There's nothing inconsistent for a federalism supporter thinking that Congress should exercise its responsibility in the arena of interstate commerce when it comes to product liability or pharmaceutical warnings through aggressive preemption of state tort suits or creation of a single consistent federal law of product liability.

Medical malpractice is obviously a different animal: when Nevada threatens pharmaceutical viability through jackpot justice, it is adversely affecting interstate commerce for everyone in the nation; but when Pennsylvania or Illinois decides to favor lawyers over doctors and patients, it is only hurting its own citizens (and helping those of Texas, who get the benefit of the inflow of doctors). There seems less a role for Congress to play in medical malpractice—except to the extent that the federal government is already involved in the issue. It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform.

Separately: the trial-lawyers' lobby jumps on Randy Barnett's op-ed, and The Hill covers the controversy (h/t Carter Wood).

Update: Walter Olson weighs in with similar analysis.

John Tabin's analysis (which quotes my analysis) is sound, but the typical media coverage of the 5-4 decision gives a loud megaphone to the ludicrous claim that the Supreme Court opened the way for consumers to be raped with impunity. Not one of these attacks on the decision points out that AT&T's arbitration clause makes it easier for an individual consumer to bring a profitable claim against the phone company. The only thing it does is to preclude a class action that would rip off the vast majority of consumers for the benefit of attorneys. The Supreme Court decision permits consumers to see cheaper prices; a mandatory arbitration clause still has to provide a consumer a remedy. The only losers are attorneys. (My organization, the Center for Class Action Fairness, filed an amicus brief in this case.)

The victory for consumers may be short lived. Elizabeth Warren has long expressed her disdain for freedom of contract and arbitration, and, as Dan Fisher points out has the regulatory power to abrogate the Federal Arbitration Act. And the Federal Arbitration Act does nothing to prevent federal courts from expressing distaste for arbitration; the Second and Fifth Circuits have each struck arbitration clauses in federal litigation for reasons of unconscionability. And we can expect the litigation lobby to continue to push for anti-arbitration provisions in federal legislation.

Update: Ribstein analyzes.

Jinx - PointOfLaw Featured Discussion


This is getting extremely frustrating. I just finished writing up my thoughts on Concepcion, and came over here to expand on how Justice Scalia's opinion offers some insight on where the Supreme Court may go in ruling on the Rule 23(b)(2) "back pay" issue.  And you've already talked about it, both here, and at your own blog.

This is not the first time you've done this to me.  So let me at least ask: could you have the decency to get something wrong when you scoop me?  Just a morsel to disagree with.  That's all I ask.  

Upon Reading Concepcion While Dukes Gestates - PointOfLaw Featured Discussion

Today the Supreme Court issued its decision in AT&T Mobility LLC v. Concepcion, No. 09-893 (U.S. Apr. 27, 2011).  At first glance, it doesn't seem that Concepcion -- which addressed whether California could use its "unconscionability" precedents to invalidate any consumer arbitration contract that included a class action waiver -- would have much to do with the issues in Dukes, which concerns whether a massive employment discrimination class action should have been certified.

And yet, in Concepcion, a five-Justice majority based its decision, in part, on just how difficult it is to create and adhere to procedures that achieve fundamental fairness in class adjudications.  The Court was expressly concerned with the due process rights of absent class members who would be bound to the decision in a class arbitration.  It mentioned the importance of opt-out rights where money damages were involved.  The Court also was worried about how to manageably conduct class discovery.  And it was concerned about the rights of defendants.

I'll confess, Jeff, that when I sat down to write my prior post, it initially felt like I was (once again) asking Santa for all of the things that my teacher-parents couldn't afford.  But as I thought more about it, many of the things on that list really are necessary to reaching the result that I think the majority will reach, which is reversal.  For example, I think they have to genuflect to the "rigorous scrutiny" standard.  And while they may not go so far as requiring plaintiffs to propound a trial plan in every case, even you and Andrew believe the focus will be on how the case would be tried.

Similarly, the notion that a (b)(2) class isn't a way around the predominance and superiority requirements of (b)(3) is something that it seems the Court has to espouse, even though it may not say money is never, ever recoverable in a (b)(2) class.

I'll admit that I'm both pleased and excited to see the mentions in Concepcion of adequacy of representation and the need for opt-out rights where money is involved.  This confirms to me that these issues are still at the forefront of the Court's mind.  And I liked Justice Scalia's statement that switching from an individual claim to a class claim sacrifices informality and is "more likely to generate procedural morass than final judgment."  Slip op. at 14.  This sounds like someone who understands the manageability problems associated with class adjudication.

I'll confess that where, as here, the case was well-argued by the defense, I'm prone to see the glass as half full.  Heck, I was even a member of the Optimist Club in my Missouri hometown.  But I wonder, Jeff, if reading Concepcion gives you even a little more hope that Dukes will be a broader, more instructive opinion?

(Lest you think I've totally drunk the Kool-Aid, I'd be happy to kvetch with you over drinks -- but not here -- about Concepcion's place in the Supreme Court's topsy-turvy preemption jurisprudence.)

Martin Act abuses - PointOfLaw Forum

In a paper for WLF, Robert A. McTamaney argues for preemption of New York's overbroad Martin Act.

The American Association for Justice has filed its first quarter lobbying disclosure form with the Clerk of the House, reporting $850,000 in lobbying expenses for the period, down from the $910,000 reported in the fourth quarter of 2010. The report filed with the House Clerk's Office indicates continued lobbying on familiar issues, such as:

  • Notice pleadings in federal courts (Iqbal/Twombly)
  • Preemption of state causes-of-action involving drug manufacturers
  • Various bills to restrict pre-dispute arbitration provisions in contracts.
  • S. 623/H.R. 592 (Sunshine in Litigation Act of 2011); relating to the use of protective orders, sealing of cases, and disclosure of discovery information in federal civil cases. (See earlier POL post.)

In light of the new Republican control of the U.S. House, the trial lawyers are also lobbying some new issues and pieces of legislation. These jumped out at us:

  • H.R. 966/S. 533 (Lawsuit Abuse Reduction Act of 2011); to amend Rule 11 of the Federal Rules of Civil Procedure to make sanctions mandatory.
  • S. 299/ H.R. 10 (Regulations From the Executive in Need of Scrutiny Act of 2011); to provide that major rules of the executive branch shall have no force or effect unless a joint resolution of approval is enacted into law.
  • H.R. 1 (Full-Year Continuing Appropriations Act); specific interest in House Amdt. 85 to defund the Equal Access to Justice program, and House Amdt.159 to defund the the Consumer Product Safety Commission Product Safety Database.
  • H.R. 887(no short title); to direct the Secretary of the Interior to submit a report on Indian land fractionation, and for other purposes, specific interest in the modification of attorney's fees. (This is a post-Cobell piece of legislation from Rep. Don Young (R-AK).

The GOP House has also elicited an increased level of lobbying against federal medical liability reform, specifically, H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act and malpractice reforms generally. The AAJ continues to go outside its own lobbying shop to pay Patton Boggs to work the health care issue, among others, to the tune of $130,000 for the quarter, as well as Forscey and Stinson, $50,000.

The AAJ has also added another lobbying firm to handle medical liability and health care issues, Van Heuvelen Strategies, LLC. Bob Van Heuvelen is the former chief of staff to Sen. Kent Conrad (D-ND), who is not seeking reelection in 2012.

Opponents of federal medical liability reform, that is Democratic politicians and trial lawyers, commonly make two arguments against Congressional action along the lines of the current H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare Act: 1. Liability reform ignores "the real issue", that of medical errors and patient safety, and 2. Federal legislation is an attack against the states, their laws, courts and prerogatives.

The first is an attempt to change the subject, deflecting attention away from the costs of defensive medicine and putting the onus on doctors and insurance companies instead of trial lawyers.

The second serves a political purpose, appealing to federalism-minded House Republicans, especially new members aligned with the Tea Party. There's another advantage, too: The argument has legal and constitutional merit.

Unfortunately, supporters of national medical liability reform rarely engage the federalism issue. Until, that is Wednesday's hearing in a House Energy and Commerce subcommittee, "The Cost of the Medical Liability System Proposals for Reform, including H.R. 5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011." In testimony on behalf of the Health Coalition on Liability and Access, Dr. Troy M. Tippett argued that activist state courts had overturned reasonable tort reforms enacted by legislatures, and health care fell under the Commerce Cause. From Dr. Tippett's prepared statement:

Enacting a federal statue, we believe, is the most effective avenue available to rein in judicial activism, address the medical liability crisis and ensure patient access to health care. H.R. 5 would level the playing field for doctors, hospitals, patients and attorneys, provide needed consistency to the system and eliminate the patchwork of protections in favor of a federal framework based on fairness and common sense.

There is plenty of legal justification for moving in this direction -- some that goes as far back as James Madison and his persuasive arguments in support of the Commerce Clause. This important provision gives Congress the ability to regulate interstate commerce (a definition which the health care industry clearly meets) when done in the public interest. In a 2003 report, the Congressional Research Service (CRS) confirmed this view, concluding that Congress has the authority to enact tort reform legislation generally, under its power to regulate interstate commerce.4 This legal logic has already been applied to an earlier medical dilemma when Congress passed the National Vaccine Injury Compensation Program, a federal program that preempts state court tort awards to protect vaccine manufacturers from bankruptcy in the face of extreme state tort jury awards. A precedent has been set, and we believe now is the time for Congress to act by passing federal medical liability legislation that protects doctors, patients and the states.

But vaccines are sold into interstate commerce and already regulated by the FDA. How is a doctor botching a procedure similar?

Lasker on preemption - PointOfLaw Forum

Eric Lasker reviews the recent Supreme Court preemption jurisprudence for WLF:

While the Court went to great lengths in Bruesewitz and Williamson to explain its opinions on narrow grounds, the lack of any clear bright line preemption rule in those cases leads inevitably to the conclusion that success in preemption litigation will turn in the first instance on which party succeeds in defining the narrative through which a court will view its analysis. In Bruesewitz, for example, the Court's detailed grammatical dissection of the NCVIA's express preemption provision could not hide the fact that both sides' proposed statutory interpretations rendered parts of the statutory language superfluous. See Bruesewitz, 2011 WL 588789 at *7. The majority opinion may have had the better of this interpretive argument, but it is difficult to credit either side's view that Congress clearly expressed its intent through the at-best inartfully-worded express preemption provision. It is likewise difficult to believe that the important public health goals specifically furthered by preemption of vaccine design defect claims did not guide the Court in reaching the proper statutory interpretation conclusion. Even more so, in Williamson, the Court's determination that the implied preemption decision turns on the "significance" of the federal regulatory decision at issue sets the stage in future preemption cases for battles over whether the policies underlying particular regulatory decisions are sufficiently (or insufficiently) significant.

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