Leave Albertson's Alone

Abstract

In this article, Professor Willis argues that the Albertson's decision, 12 F.3d 1529 (9th Cir. 1993), not only is correct under the law of 1983 (the year at issue), but also would be correct under current law. He maintains that it is consistent, contrary to the protestations of other commentators, with the legislative history of sections 404 and 404A, as well as the current regulations promulgated under those provisions. He concludes that, while the government has sought, and won, a rehearing of the decision, the government may rue the day it did so if the decision is reversed.