April has been a busy month here at the Notice and Comment blog, with a terrific, two-week symposium organized by my co-blogger Jennifer Mascott on Lucia v. SEC, the constitutional challenge to the appointment of SEC administrative law judges that the Supreme Court heard on Monday. So my monthly SSRN post is coming a bit late, but hopefully better late than never, right?
- 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.”]
- The New World of Agency Adjudication by Christopher J. Walker & Melissa F. Wasserman (California Law Review forthcoming) [CJW Note: Melissa and my new article on patent adjudication at the U.S. Patent and Trademark Office has become even more timely in light of the Supreme Court’s decision today in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, which upheld the constitutionality of such patent adjudication. Over at Written Description earlier this week, Lisa Ouellette posted a thoughtful review of our article.]
- 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.]
- 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.]
- The American Deep State by Jon D. Michaels (Notre Dame Law Review forthcoming) [CJW Note: In March here at Notice and Comment we hosted an engaging 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.]
- 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.]
- Administrative Law’s Political Dynamics by Kent Barnett, Christina Boyd and Christopher Walker (Vanderbilt Law Review forthcoming) [CJW Note: This is the latest, most-sophisticated paper from our dataset of Chevron deference in the circuit courts. I did a quick post about the paper over at the Law and Liberty blog, provocatively titled The Federalist Society’s Chevron Deference Dilemma, in which I suggested that Chervon deference may have the benefit of reining in partisanship in judicial decisionmaking. The post indeed provoked a passionate response by Philip Hamburger.]
- Remedial Chevron by F. Andrew Hessick (North Carolina Law Review forthcoming) [CJW Note: Today Justice Breyer suggested that Chevron deference is more a rule of thumb than a precedent. In this paper my co-blogger Andy Hessick provocatively argues that Chevron deference should be transformed from an interpretive tool to a limitation of the remedial power of the courts. Definitely worth a read!]
- An Empirical Examination of Agency Statutory Interpretation by Amy Semet (Minnesota Law Review forthcoming) [CJW Note: I am definitely biased here, as I love looking inside agency statutory interpretation. But this is just a fascinating and important empirical study that examines some 7,000 NLRB decisions to better understand how the agency interprets statutes over time. I’m definitely looking forward to hearing more from this new voice in administrative law.]
- Standing to Appeal at the Federal Circuit: Appellants, Appellees, and Intervenors by Matthew J. Dowd and 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 May with the next edition.