Here is the May 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. There’s a lot of new scholarship on this list, adding signficantly to my summer reading list:
- Petitioning and the Making of the Administrative State by Maggie McKinley (127 Yale Law Journal 1538 (2018)) [CJW Note: This is a fascinating historical dive into the petitioning process and its role in the administrative state from a new voice in the field. McKinley just joined U Penn law, and I’m so looking forward to her future work.]
- Regulatory Police by Rory Van Loo (Columbia Law Review forthcoming) [CJW Note: I heard Rory present the current draft of this paper at the Third Annual Administrative Law New Scholarship Roundtable last month at The School Up North, and it’s a fascinating read. Regulation by compliance is an area of administrative law that deserves even greater empirical investigation and theoretical development, and this paper helps advance those inquiries.]
- Administrative Law Without Courts by Christopher J. Walker (UCLA Law Review forthcoming) [CJW Note: This essay is my contribution to a terrific UCLA Law Review symposium entitled The Safeguards of Our Constitutional Republic, which Jon Michaels organized with a live symposium last February.]
- Saving Governance-by-Design by Deirdre K. Mulligan & Kenneth A. Bamberger (106 California Law Review 697 (2018)) [CJW Note: This paper on governing through technology looks fascinating, and it’s definitely on my summer reading list.]
- Centralized Review of Tax Regulations by Clint Wallace (Alabama Law Review forthcoming) [CJW Note: Clint presented an earlier draft of this paper last summer at the Second Annual Administrative Law New Scholarship Roundtable, which my colleague Peter Shane and I hosted at Ohio State. It’s a great read, and even more timely now in light of the agreement Treasury and OMB reached in April to subject tax regulations to OIRA review.]
- Field Preemption: Opening the ‘Gates of Escape’ from Tort Law by Catherine M. Sharkey (Journal of Legal Studies forthcoming) [CJW Note: In this paper Sharkey critiques Richard Epstein’s defense of field preemption of state tort laws in the drug labeling space.]
- Congress and the Independence of Federal Law Enforcement by Andrew Kent (U.C. Davis Law Review forthcoming) [CJW Note: This paper sets forth a menu of regular and “constitutionally aggressive” options for Congress to engage with the White House in its supervision of federal law enforcement. Some of these tools are detailed in Josh Chafetz’s terrific book Congress’s Constitution, which I reviewed earlier this year for the Michigan Law Review.]
- Reconstructing the Administrative State in an Era of Economic and Democratic Crisis by K. Sabeel Rahman (131 Harvard Law Review 131 (2018)) [CJW Note: This is Rahman’s thoughtful review of Jon Michaels’s book Constitutional Coup. Here at the blog we also hosted an online symposium on this terrific book.]
- Beyond Repair: FEC Reform and Deadlock Deference by Daniel P. Tokaji (Democracy by the People, Cambridge University Press forthcoming) [CJW Note: In this draft book chapter, my colleague Dan Tokaji argues that Chevron deference should not apply to deadlocked FEC decisions; instead, courts should cast the deciding vote.]
- Congressional Power over Office-Creation by E. Garrett West (Yale Law Journal forthcoming) [CJW Note: This student note is an engaging read, arguing that Congress has exclusive office-creating powers and how that understanding sheds important light on debates about officer qualifications, removal restrictions, temporary appointments, and the officer-employee distinctions under the Appointments Clause.]
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 Sam Lioi for helping put together this monthly post. I’ll report back at the start of July with the next edition.