Wow, this month’s SSRN reading list is full of some of my favorite administrative law/public law scholars, including Bulman-Pozen, Heise, Lawson, Metzger, Michaels, Pozen, Sharkey, Stack, and Sunstein! And the papers are fascinating. Here is the February 2018 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 Bill Funk.
- Transparency’s Ideological Drift by David Pozen (Yale Law Journal forthcoming) [CJW Note: As I’d expect from anything written by Pozen, this is a provocative and fun read, as he argues that transparency started as perhaps an end in itself for progressives that is now being used more as a tool/means by libertarians “to make government smaller and less egregious.” I wonder what role, if any, the interaction between the evolution of transparency as a good governance tool and the fall of legislative lawmaking (and accompanying further rise of regulatory lawmaking) plays here.]
- Irreparability as Irreversibility by Cass R. Sunstein (Supreme Court Review forthcoming) [CJW Note: As the title suggests, Sunstein argues that we should reframe the irreparable injury inquiry as one of irreversibility in the preliminary injunction and related contexts.]
- Cutting in on the Chevron Two-Step by Catherine M. Sharkey (Fordham Law Review forthcoming) [CJW Note: I blogged about Sharkey’s new paper on rethinking Chevron step two in the AdLaw Bridges Series in January. Kent Barnett and I have a paper forthcoming in the Notre Dame Law Review that sheds some empirical light on this.]
- From No Child Left Behind to Every Student Succeeds: Back to a Future for Education Federalism by Michael Heise (117 Columbia Law Review 1859 (2017)) [CJW Note: This is a fascinating read. Heise argues that the shift from the No Child Left Behind Act to the Every Student Succeeds Act wasn’t just a federalism shift of education policy from the federal to the state level, but also a shift “from governments to families, from regulation to markets.” The article concludes with some thoughts about how the rise of school choice affects the education federalism debate and education policy more generally.]
- Appointments and Illegal Adjudication: The AIA Through a Constitutional Lens by Gary Lawson (George Mason Law Review forthcoming) [CJW Note: Everything Gary Lawson writes is fun and worth a close read, and this is no exception. In addition to assessing the constitutional claim at issue in Oil States this Term, this paper argues that patent administrative judges are unconstitutionally appointed because they are principal officers with final decisionmaking authority yet they were not appointed by the President with the advice and consent of the Senate. I read an earlier version of this paper that was presented at George Mason’s conference on the patent adjudication. Melissa Wasserman and I just posted to SSRN a draft of our contribution to the conference: The New World of Agency Adjudication.]
- The American Deep State by Jon D. Michaels (Notre Dame Law Review forthcoming) [CJW Note: Here at Notice and Comment we just completed a week-long symposium on Michaels’ new book Constitutional Coup. This essay, which was part of a terrific symposium for which Kent Barnett and I presented our work on Chevron Step Two’s Domain, builds on the book project, arguing that the American bureaucracy serves as an important constitutional safeguard and that we need more of it.]
- Chevron Deference and Net Neutrality by David A. Balto [CJW Note: This short essay argues that the FCC’s repeal of the open internet order should survive judicial scrutiny for the same reason the open internet order survives judicial review: Chevron deference.]
- Federalism All the Way Up: State Standing and “The New Process Federalism” by Jessica Bulman-Pozen (105 California Law Review 1739 (2017)) [CJW Note: This is Bulman-Pozen’s response to Heather Gerken’s Jorde Lecture entitled Federalism 3.0. The published version of Dean Gerken’s lecture is here.]
- Internal Administrative Law by Gillian E. Metzger & Kevin M. Stack (115 Michigan Law Review 1239 (2017)) [CJW Note: Metzger and Stack take stock of the hot and growing field of internal administrative and argue that internal administrative law should have more room to grow with less constraint from judicial or presidential review. I am definitely incorporating this foundational article into my book project on administrative law without courts.]
- Standing to Appeal at the Federal Circuit: Appellants, Appellees, and Intervenors by Matthew J. Dowd & Jonathan Stroud (Catholic University Law Review forthcoming) [CJW Note: This article timely addresses how the Federal Circuit should articulate justiciability standards for appeals from the Patent Trial and Appeal Board.]
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 Kaile Sepnafski for helping put together this monthly post. I’ll report back at the start of April with the next edition.