Unwritten Law

• FERC’s Duty of Candor Rule: Dead on Arrival

  In this episode, Mark Chenoweth and John Vecchione sit down with NCLA Litigation Counsel Casey Norman to break down a major regulatory win: stopping FERC’s sweeping “Duty of Candor” rule before it ever hit the books. The proposed rule would have allowed the Federal Energy Regulatory Commission to punish any speaker — from corporations to ordinary citizens — for any statement, email, or phone call the agency deemed “false,” “misleading,” or missing “material information,” with no mens rea requirement and no defined limits.Casey walks through why this vague, overbroad rule was a First Amendment disaster waiting to happen; how it risked chilling public debate on energy and environmental policy; and how NCLA’s detailed comments helped persuade FERC to scrap the rule entirely. The team also explores how the proposal fit into a broader pattern of government attempts to police “truth,” and why regulatory speech controls should worry everyone.It’s a rare victory in the world of administrative rulemaking — and a reminder that sometimes the best lawsuit is the one you never have to file.

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  12:31

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  12:31
• BASE Jumping, Bureaucracy, and the Law

  In this episode, Casey Norman joins Mark Chenoweth and John Vecchione to unpack BASE Access, et al. v. National Park Service, a remarkable case about whether a federal agency can criminalize BASE jumping in national parks without any clear authorization from Congress. For nearly 50 years, the National Park Service has treated BASE jumping as a crime—even though the regulation they rely on was written in the 1950s to prevent cargo drops, not recreational jumping.Casey explains the nondelegation challenge, the vagueness problem, the strange double standard with hang gliding, and why a federal judge in Houston is pressing the government to rethink its outdated criminal rules. If you care about the Constitution, criminal law, or just enjoy wild outdoor sports, this episode has something for you.

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  18:47

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  18:47
• When SEC Receivers Go Too Far: Russ Ryan on Barton v. SEC

  Senior Litigation Counsel Russ Ryan joins Mark Chenoweth and John Vecchione to break down Barton v. SEC, a newly filed cert petition that challenges the SEC’s practice of using court-appointed receivers to seize assets, run companies, and even sue third parties—all without clear statutory authority. Russ explains how these ad-hoc receiverships raise serious Appointments Clause, separation-of-powers, bankruptcy-evasion, and Sixth Amendment concerns, and why the Supreme Court should put a stop to this shadow system. A deep dive into one of the most under-scrutinized abuses in federal enforcement.

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  21:24

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  21:24
• Trump v. Slaughter: The Supreme Court Case That Could End Humphrey’s Executor

  In this episode of Unwritten Law, Mark Chenoweth and John Vecchione welcome Margot Cleveland to unpack the Supreme Court case Trump v. Slaughter, a historic challenge to whether the President can remove commissioners of the Federal Trade Commission at will.They walk through the key amicus briefs, Professor Caleb Nelson’s arguments, and Philip Hamburger’s response in the Yale Journal on Regulation emphasizing the Constitution’s unitary executive structure. The trio also discuss the foreign-policy powers exercised by modern independent agencies and why the Court may finally be ready to overturn Humphrey’s Executor. A deep dive into one of the most important separation-of-powers cases of the term.

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  28:54

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  28:54
• What “Necessary” Really Means: Kara Rollins on Fixing Discretion in Federal Law

  John Vecchione sits down with NCLA’s Kara Rollins to unpack her new article published in the Yale Journal on Regulation, written as part of an online symposium analyzing Senator Eric Schmitt’s post–Loper Bright working-group report. Kara breaks down the misunderstood concept of “necessary” discretion in statutes, how agencies exploit vague language to expand their power, and why Congress should reform definition sections—rather than abandon useful legislative terms. They also discuss real-world examples from NCLA’s litigation, including R-CALF and Magnuson-Stevens, and explore how tighter drafting could rein in overreach in the post-Chevron era.Read Kara’s full article here:https://www.yalejreg.com/nc/necessary-discretion-a-primer-for-non-lawyers-by-kara-mckenna-rollins/

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