Legal Commentary

Explore insightful analyses and expert opinions on current legal issues in our Legal Commentary section. Here, visitors will find in-depth articles, video interviews, and discussions that unpack complex legal topics, trends, and landmark cases. Stay informed and enhance your understanding of the law with our authoritative resources tailored for attorneys, legal professionals, and those seeking clarity on legal matters.

281 posts

How to challenge agency rulemaking as arbitrary and capricious

Administrative Law Constitutional Law

How to challenge agency rulemaking as arbitrary and capricious

November 20, 2024 • By Jack Gilbert

Under the APA, courts will set aside an agency rule as “arbitrary and capricious” if the agency failed to give a reasoned explanation or ignored key evidence in the record. A successful challenge typically shows the rule conflicts with the statute, relies on improper factors, or fails to address important comments. This article explains the […]

Procedural vs. substantive arbitrary and capricious review: What’s the difference?

Administrative Law Constitutional Law

Procedural vs. substantive arbitrary and capricious review: What’s the difference?

November 20, 2024 • By Jack Gilbert

Procedural arbitrary and capricious review targets flaws in the agency’s decisionmaking process (e.g., ignored comments or inadequate explanation), while substantive review targets the reasonableness of the outcome based on the record. Both apply under the APA’s “arbitrary, capricious, an abuse of discretion” standard in 5 U.S.C. § 706(2)(A). This article explains the differences, key cases, […]

Circuit court interpretations: Analyzing arbitrary and capricious rulings

Administrative Law Constitutional Law

Circuit court interpretations: Analyzing arbitrary and capricious rulings

November 19, 2024 • By Jack Gilbert

The APA’s “arbitrary and capricious” standard appears in 5 U.S.C. § 706(2)(A) and requires agencies to show a reasoned explanation grounded in the record. Circuit courts apply it by checking whether the agency considered relevant factors and explained departures from prior policy without ignoring key evidence. This article compares major circuit approaches and what they […]

Jim Jones and Jonestown: The Legal Implications of a Mass Tragedy

Child Protection Civil Rights

Jim Jones and Jonestown: The Legal Implications of a Mass Tragedy

November 19, 2024 • By Jack Gilbert

The Jonestown tragedy killed 918 people in 1978, raising enduring questions about criminal accountability and civil liability. It also exposed gaps in oversight of religious groups, child welfare protections, and responses to coercive control. This article outlines the key legal implications, potential claims, and policy reforms tied to mass-casualty cult violence. The Jonestown massacre, orchestrated […]

What are examples of successful proactive PR campaigns for law firms?

Legal Advice and Consultation Legal Commentary

What are examples of successful proactive PR campaigns for law firms?

November 19, 2024 • By Jack Gilbert

Successful proactive PR campaigns for law firms typically include 5 proven plays: thought-leadership bylines, newsjacking media outreach, data-driven reports, award/ranking PR, and community-impact initiatives. These campaigns build credibility, generate earned media, and position attorneys as go-to experts in specific practice areas. This article breaks down real-world examples, what made them work, and how to replicate […]

Landmark Supreme Court cases shaping the arbitrary and capricious standard

Administrative Law Constitutional Law

Landmark Supreme Court cases shaping the arbitrary and capricious standard

November 19, 2024 • By Jack Gilbert

The Supreme Court has shaped the arbitrary and capricious standard through at least 5 major decisions, including Overton Park, State Farm, Chevron, Fox Television, and Encino Motorcars. These cases require agencies to offer reasoned explanations and consider relevant factors under the Administrative Procedure Act. This article summarizes each ruling’s rule and its practical impact on […]

Arbitrary and capricious vs. substantial evidence: Key differences explained

Administrative Law Constitutional Law

Arbitrary and capricious vs. substantial evidence: Key differences explained

November 19, 2024 • By Jack Gilbert

The key difference is that “arbitrary and capricious” is a deferential reasoned-decisionmaking check, while “substantial evidence” requires enough record support that a reasonable mind could accept. Arbitrary-and-capricious review focuses on the agency’s explanation; substantial-evidence review focuses on evidentiary support in the administrative record. This article explains when each standard applies and how courts evaluate agency […]

What are the latest developments in antitrust litigation involving major tech companies like Apple?

Civil Litigation Consumer Protection

What are the latest developments in antitrust litigation involving major tech companies like Apple?

November 18, 2024 • By Jack Gilbert

As of 2024–2025, Apple faces at least two major antitrust fronts: the U.S. DOJ’s March 2024 monopolization lawsuit and EU enforcement actions under the Digital Markets Act. These cases target App Store policies like steering limits, default settings, and platform access, with potential remedies ranging from rule changes to structural relief. This article summarizes the […]

How is artificial intelligence impacting legal practices, particularly in IP litigation and labor relations?

Compliance Violations Intellectual Property

How is artificial intelligence impacting legal practices, particularly in IP litigation and labor relations?

November 18, 2024 • By Jack Gilbert

AI is impacting legal practices by cutting document review and legal research time by up to 60% in many matters. In IP litigation it improves prior art searches, claim mapping, and eDiscovery, while in labor relations it supports contract analysis, compliance monitoring, and dispute triage but raises bias and confidentiality issues. This article explains the […]

How often should a company review its data privacy compliance?

Cybercrime Legal Advice and Consultation

How often should a company review its data privacy compliance?

November 16, 2024 • By Jack Gilbert

Most companies should review data privacy compliance at least annually, and immediately after major business or regulatory changes. Frequent reviews reduce breach risk, catch gaps in vendor and internal practices, and help maintain required documentation for laws like the GDPR and CCPA/CPRA. This article explains recommended review schedules, key triggers for off-cycle audits, and practical […]

What technology do I need for an effective online legal consultation?

Client Acquisition for Law Firms Legal Advice and Consultation

What technology do I need for an effective online legal consultation?

November 16, 2024 • By Jack Gilbert

You need a reliable internet connection, a device with a camera and microphone, and a secure video platform to have an effective online legal consultation. Using updated software, a quiet private space, and a way to share documents (like PDF scans or a secure client portal) helps your attorney review facts quickly and protect confidentiality. […]

Can unpopular agency decisions be classified as arbitrary and capricious?

Administrative Law Civil Law

Can unpopular agency decisions be classified as arbitrary and capricious?

November 16, 2024 • By Jack Gilbert

Unpopular agency decisions are not arbitrary and capricious on that basis alone—courts apply the APA’s “arbitrary and capricious” test by reviewing the administrative record for reasoned decision-making. A decision is more likely to be set aside if the agency ignored key evidence, failed to explain its change in policy, or relied on improper factors. This […]

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