Here is the November 2014 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 William Funk. 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.
Glenn Harlan Reynold‘s Don’t Fear the Leaker: Thoughts on Bureaucracy and Ethical Whistleblowing is the only paper remaining in the top five from last month’s top five, discussed here. That short essay argues — per the abstract — that “rather than trying to eliminate leaks entirely, which experience demonstrates is impossible, we should instead try to channel leaks so that they provide the maximum benefit to transparency while reducing risks to national security and other secrecy concerns.”
The next two papers come from the Fordham Law Review’s Chevron at 30 Symposium, which I blogged about here. The first is the Symposium’s Foreword, which I co-authored with Peter Shane (83 Fordham Law Review 475 (2014)). The second is a terrific essay, entitled What 30 Years of Chevron Teach Us About the Rest of Statutory Interpretation, by Abbe Gluck (83 Fordham Law Review 607 (2014)). In this essay, as the title suggests, Professor Gluck assembles the various lessons that Chevron offers for statutory interpretation more generally. Among other things, she draws on the pathbreaking empirical study she conducted with Lisa Bressman of congressional drafters to provide insights into how statutory interpretation should be conducted. It’s a must-read for anyone interested in legislation and statutory interpretation in addition to administrative law.
Coming in fourth on the charts is an article by FTC Commissioner Joshua D. Wright and Jan M. Rybnicek (one of Commissioner Wright’s staffers). In this article entitled Defining Section 5 of the FTC Act: The Failure of the Common Law Method and the Case for Formal Agency Guidelines (21 George Mason Law Review 1287 (2014)), the authors argue that the FTC should finally define what constitutes a standalone “unfair method of competition” under Section 5 of the FTC Act. As opposed to continuing to develop Section 5 via the common law method in adjudication, the authors argue that the FTC should issue formal agency guidelines.
Rounding out the top five is a timely and important paper, entitled Tax Law Nonenforcement, by Leigh Osofsky. In this paper, Professor Osofsky defends, in certain circumstances, the categorical nonenforcement of the tax law as a means to increase the IRS’s legitimacy. This paper has been presented at 2014 National Tax Association Annual Conference on Taxation and the 2014 Junior Tax Scholars Workshop — and will be presented at the 2015 NYU Tax Policy Colloquium — but does not appear to be forthcoming in a journal yet. Law review editors should definitely check it out, especially with how hot the topic of executive discretion to enforce the law is these days.
And here is the rest of the top ten:
8. Administrative Law Without Congress: Of Rewrites, Shell Games, and Big Waivers, byMichael Greve and Ashley C. Parrish (George Mason Law Review forthcoming) [CJW Note: I blogged about this paper here.]
10. Restructuring the U.S. Tax Court: A Reply to Stephanie Hoffer & Christopher Walker’s The Death of Tax Court Exceptionalism, by Leandra Lederman (Minnesota Law Review Headnotesforthcoming) [CJW Note: I blogged about this essay here. As the title suggests, Professor Lederman is responding to a paper I coauthored with Stephanie Hoffer that is forthcoming in the Minnesota Law Review and available on SSRN here.]
Thanks to my terrific research assistant Molly Werhan for helping put together this monthly post. I’ll report back at the start of the new year with the next edition.