This month’s SSRN reading list likely constitutes the calm before the storm of new administrative law scholarship, as the spring law review season opens up and scholars begin posting new articles to SSRN. But January was still a solid month for new scholarship. Here is the January 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.
- Chevron Step Two’s Domain by Kent H. Barnett & Christopher J. Walker (Notre Dame Law Review forthcoming) [CJW Note: This is Kent and my contribution to the Notre Dame Law Review symposium on administrative law, which Jeff Pojanowski blogged about last year here. Our essay draws on our empirical study of Chevron in the circuit courts, focusing here on how circuit courts approach step two. With our political scientist coauthor Christy Boyd, we should post to SSRN soon a new paper from this dataset on Chevron and political accountability.]
- Classical Liberal Administrative Law in a Progressive World by Michael B. Rappaport [CJW: Rappaport presented this big-think paper on reforming administrative law at the AALS/Federalist Society conference last month. I blogged about our panel, with a link to the video, here. He’s also blogged about the paper in a series of posts over at the Law and Liberty here.]
- 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 last month.]
- From the History to the Theory of Administrative Constitutionalism by Sophia Z. Lee (Administrative Law from the Inside Out: Essays on Themes in the Work of Jerry L. Mashaw (Nicholas R. Parrillo ed., Cambridge 2017)) [CJW: This looks like a fascinating book chapter on the historical foundations for administrative constitutionalism, and it remains on my reading list for a more careful read!]
- What Congress’s Repeal Efforts Can Teach Us About Regulatory Reform by Cary Coglianese and Gabriel Scheffler (3 Administrative Law Review Accord 43 (2017)) [CJW Note: This short essay argues that Congress’s use of the Congressional Review Act to invalidate some 15 final agency rules last year demonstrates similar problems with the REINS Act.]
- 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.]
- 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 PTAB. Melissa Wasserman and I hope to post to SSRN soon a draft of our contribution to the conference (abstract here).]
- Reasonableness Review of Executive Orders by David M. Driesen [CJW Note: As the title suggests, this paper tackles what level of judicial review should apply to executive orders and concludes that, at least for executive orders based on statutory authority, courts should review them under the less-deferential arbitrary-and-capricious standard than under the more-deferential standard applied to legislative enactments.]
- 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 short response to Heather Gerken’s Jorde Lecture entitled Federalism 3.0. The published version of Dean Gerken’s lecture is here.]
- Topic Modeling the President: Conventional and Computational Methods by J. B. Ruhl, John Nay & Jonathan M. Gilligan (George Washington Law Review forthcoming) [CJW Note: This empirical project looks fascinating, as the authors apply topic modeling to a large corpus of presidential documents.]
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 March with the next edition.