My April SSRN post is barely making it online before the end of May, as the last couple months have been both a blur and a trudge. (Among other things, I’ve discovered I am a very poor elementary school teacher as we’ve struggled with distance-learning/teaching our kids at home.) But there is a lot of great administrative law scholarship on SSRN right now.
1. Urgent Legal Lessons From a Very Fast Problem: COVID-19 by Eric E. Johnson and Theodore C. Bailey (Stanford Law Review Online forthcoming) [CJW: This is a timely essay that explores how the existing administrative state is not built to respond well to an urgent national public health emergency and suggests a path forward.]
2. The Automated Administrative State: A Crisis of Legitimacy by Ryan Calo & Danielle Keats Citron (Emory Law Journal forthcoming) [CJW Note: This is an absolutely fascinating article about how we should respond to automation in the administrative state.]
3. National Security Lawyering in the Post-War Era: Can Law Constrain Power? by Oona A. Hathaway [CJW: Leveraging interviews and other methods, this article provides a deep dive into national security lawyering and details how the lack of adequate external constraints on such lawyering is a major problem for the rule of law.]
4. On Neglecting Regulatory Benefits by Cass R. Sunstein [CJW Note: This is Sunstein’s short response to the Trump Administration’s one-in, two-out executive order on regulatory budgeting. Like many others, he criticizes the order’s exclusive focus on costs, and not benefits. But he also argues for more retrospective review, more disciplined cost-benefit analysis, and more “institutional mechanisms to promote issuance of regulations that would have high net benefits.”]
5. Nondelegation at the Founding by Ilan Wurman (Yale Law Journal forthcoming) [CJW Note: I blogged about this paper and its response to Mortenson and Bagley’s important article Delegation at the Founding here.]
6. Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies by David Freeman Engstrom, Daniel E. Ho, Catherine M. Sharkey, & Mariano-Florentino Cuéllar (Report of the Administrative Conference of the United States) [CJW Note: This is a pathbreaking ACUS study on the use of AI at federal agencies–with extensive case studies and data collection across the federal regulatory state. If law reviews are looking for symposium ideas, this is a great one. The Calo and Citron article above is an important complement to this study, and there are others writing in this space as well. Bringing these scholars together would make for an amazing conference.]
7. The Other Hobbs Act: An Old Leviathan in the Modern Administrative State by Jason Sigalos (Georgia Law Review forthcoming) [CJW Note: It’s not often that a student note makes the monthly top-ten list, but this is a good one. I blogged about it here.]
8. Symmetry’s Mandate: Constraining the Politicization of American Administrative Law by Daniel Walters (Michigan Law Review forthcoming) [CJW Note: Walters is a rising star in the field, and this paper is a really engaging read. I’ve commented on prior drafts at a couple conferences, and the paper teases out an important difference for doctrine and theory between over- and under-regulation.]
9. Narrowing Chevron’s Domain by Kristin E. Hickman and Aaron Nielson (Duke Law Journal forthcoming) [CJW Note: This paper calls for the elimination (or at least narrowing) of Chevron deference in agency adjudication. As Aaron noted on the blog last month, the Duke Law Journal editors decided–wisely, in my opinion–to frame their annual symposium around this article. Building on their arguments, Shoba Sivaprasad Wadhia and I will be contributing to the symposium a paper tentatively titled The Case Against Chevron Deference in Immigration Adjudication.]
10. A Rebuttal to ‘Delegation at the Founding’ by Aaron Gordon [CJW Note: This is the second student-authored paper in the top ten this month, and the second response to Mortenson and Bagley’s article Delegation at the Founding.]
For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You can check out the full rankings, updated daily, here.
Thanks to my terrific research assistant Sam Lioi for helping put together this monthly post. This is Sam’s last month assisting me with the monthly SSRN series. He’s been a fantastic research assistant on so many projects, and I wish him the best of luck as he begins a clerkship on the Sixth Circuit. I’ll report back in June with the next edition.