Administrative Law SSRN Reading List, December 2014 Edition
As we enter the New Year, SSRN has some terrific new administrative law scholarship to consume. Here is the December 2014 Edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN‘s U.S. Administrative Law eJournal, which is edited by William Funk. 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.
Of the top five from November, only holdover is Abbe Gluck’s What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation (83 Fordham Law Review 607 (2014)). This essay is part of the Fordham Law Review’s Chevron at 30 Symposium, which I’ve blogged about here. The Symposium’s Foreword, which I co-authored with Peter Shane, is available here. In this essay, as the title suggests, Professor Gluck assembles the various lessons that Chevron offers for statutory interpretation more generally. Among other things, she draws on the pathbreaking empirical study she conducted with Lisa Bressman of congressional drafters to provide insights into how statutory interpretation should be conducted. It’s a must-read for anyone interested in legislation and statutory interpretation in addition to administrative law. Indeed, over at the Legal Theory Blog, Larry Solumncalls it one of the top ten SSRN downloads of the year.
The most-downloaded recent paper is Cass Sunstein’s Partyism ( University of Chicago Legal Forumforthcoming). In this short and fun read, Professor Sunstein argues that when we live in an era of severe partyism—as we do now—“relatively broad delegations of authority to the executive branch, and a suitably receptive approach to the Chevron principle, have considerable appeal as ways of allowing significant social problems to be addressed.”
Geoffrey P. Miller’s The Compliance Function: An Overview is the third most-downloaded recent paper. In this short essay, Professor Miller looks at compliance within large corporations and other organizations, examining “the analysis of compliance within a general theory of enforcement; the development of the compliance function; the concept of internal control; the distribution of the compliance function among control personnel; oversight obligations of directors and executives; compliance programs and policies; internal investigations; whistleblowers; criminal enforcement; compliance outside the firm; and business ethics beyond formal compliance.”
Coming in fourth on the charts is Roberta Romano’s Further Assessment of the Iron Law of Financial Regulation: A Postscript to Regulating in the Dark. This is a follow-up piece to her terrific essay, Regulation in the Dark, which was published in Regulatory Breakdown: The Critics of Confidence in U.S. Regulation. In this paper, Professor Romano looks at how financial regulators have implemented Dodd-Frank since her original essay. As she explains in the abstract, “[t]he analysis bolsters the original essay’s contention regarding the inherent flaws in major financial legislation and the corresponding benefit for improving decision-making that would be obtained from employing, as best practice, the legislative tools of sunsetting and experimentation to financial regulation. The use of those techniques, properly implemented, advances means-ends rationality, by better coupling the two, and improves the quality of decision-making by providing a means for measuring and remedying regulatory errors.”
Rounding out the top five is Administrative Law Without Congress: Of Rewrites, Shell Games, and Big Waivers, by Michael Greve and Ashley C. Parrish (George Mason Law Reviewforthcoming). This paper is another really fun read, and I’ve blogged about it here. As the title suggests, Greve and Parrish focus on how Congress can (but currently isn’t) reigning in the modern administrative state.
And here is the rest of the top ten:
6. Administrative War, by Mariano-Florentino Cuéllar (82 George Washington Law Review1343 (2014)) [CJW: I blogged about this article here.]
7. Overcriminalization: Administrative Regulation, Prosecutorial Discretion, and the Rule of Law, by Ronald A. Cass (Engage forthcoming)
8. Judicial Review of Agency Benefit-Cost Analysis, by Caroline Cecot and W. Kip Viscusi(George Mason Law Review forthcoming)
9. Patent Conflicts, by Tejas N. Narechania (Georgetown Law Journal forthcoming)
10. Regulating Professional Sports Leagues, by Nathaniel Grow (Washington and Lee Law Review forthcoming)
Thanks to my terrific research assistant Molly Werhan for helping put together this monthly post. I’ll report back at the start of February with the next edition.