Lots of great new adlaw scholarship this summer! Here is the July 2017 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.
- The Politics of Invoking Chevron Deference by Kent H. Barnett, Christina L. Boyd & Christopher J. Walker [CJW Note: This is the second paper from Kent and my eleven-year dataset on Chevron deference in the circuit courts, and we brought on a political scientist as a coauthor to do more with our data. We received great feedback on the paper at the Second Annual Administrative Law New Scholarship Roundtable, which we’ve incorporated in this latest draft that has a new title. Thanks Jon Adler for featuring our paper over at the Volokh Conspiracy.]
- Taking the Fifth… Please!: The Original Insignificance of the Fifth Amendment’s Due Process of Law Clause by Gary Lawson (Brigham Young University Law Review forthcoming) [CJW Note: This is Gary Lawson, so you must read it. Spoiler alert: He concludes that “the Fifth Amendment’s Due Process of Law Clause (1) is much more about substance than about procedure and (2) is basically irrelevant to the Constitution’s original meaning.” This paper was one of the many great papers presented at the George Mason Center for the Study of the Administrative State’s Rethinking Due Process Conference earlier this year.]
- Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.) (Filed by Professor Josh Blackman & Robert W. Ray, Esq.) by Seth Barrett Tillman [CJW Note: This is Tillman’s take on the Trump Emoluments Clause litigation. Brianne Gorod has a fascinating response on the historical evidence regarding Hamilton’s position on the Clause, and all of the amicus briefs on the other side of the litigation were just filed and are available here.]
- The Genesis of Independent Agencies by Patrick Corrigan and Richard L. Revesz (92 NYU Law Review 637 (2017)) [CJW Note: This is a fascinating new coauthored article by Revesz on what factors influence whether Congress creates an agency more insulated from presidential control. The big point is that divided government is not the only big factor; political control of the Senate matters. The Regulatory Review published a shorter essay on this paper here.]
- Revisiting Seminole Rock by Jeffrey A. Pojanowski (Georgetown Journal of Law & Public Policy forthcoming) [CJW Note: I had a chance to review and comment on an earlier draft of this paper at a conference in March hosted by Georgetown’s Center for the Constitution and the Institute for Justice. I hope to post a draft of my paper from the conference, entitled Attacking Auer and Chevron Deference: A Literature Review, later this month.]
- Due Process and Delegation: ‘Due Substance’ and Undone Process in the Administrative State by Ronald A. Cass [CJW Note: Here is Ron Cass’s contribution to George Mason’s Rethinking Due Process Conference noted above.]
- Beyond Weber: Law and Leadership in an Institutionally Fragile World by Mariano-Florentino Cuellar (69 Stanford Law Review 1667 (2017)) [CJW Note: This is a really fascinating new paper by California Supreme Court Justice Tino Cuellar (who taught me administrative law back in the day!), drawing from Weber’s take on the administrative state to explore leadership in law-related contexts.]
- Constitutionally Conforming Agency Adjudication by Jennifer L. Mascott (Loyola Journal of Regulatory Compliance forthcoming) [CJW Note: This essay builds on Mascott’s important Stanford Law Review article on what “Officers of the United States” means in the Appointments Clause.]
- Political Control Over Public Communications by Government Scientists by Cass R. Sunstein & Lisa Randall [CJW Note: This is a timely and short (6 pages!) paper by Sunstein and coauthor Harvard physicist Randall on criteria for publicly releasing government scientist research.]
- Cf. Auer v. Robbins by Aaron Nielson (Texas Review of Law & Politics forthcoming) [CJW Note: Here is another breezy paper (3 pages!), this one by my coblogger and occasional coauthor Aaron on Justice Scalia’s evolving view on Auer deference.]
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 September with the next edition.