Notice & Comment

Administrative Law SSRN Reading List, October 2017 Edition

SSRNHere is the October 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.

  1. Misconceptions About Nudges by Cass R. Sunstein [CJW Note: As I noted last month, this 12-page essay by Sunstein already has nearly 2,000 downloads on SSRN. The timing could not have been better, as Sunstein’s frequent nudging collaborator — Richard Thaler — won the Nobel Prize in Economics.]
  1. The Morality of Administrative Law by Cass R. Sunstein & Adrian Vermeule (Harvard Law Review forthcoming) [CJW Note: This article is an absolute tour de force; as I noted on Twitter, I could teach an entire administrative law course based on this article.]
  1. Game Over: Regulatory Capture, Negotiation, and Utility Rate Cases in an Age of Disruption by Heather Payne (University of San Francisco Law Review forthcoming) [CJW Note: I still need to read this paper more carefully, as it’s a fascinating empirical study on agency capture in utility ratemaking at the state and local level.]
  1. Chevron’s Inevitability by Kristin E. Hickman & Nicholas R. Bednar (George Washington Law Review forthcoming 2017) [CJW Note: Hickman and Bednar survey current criticisms of Chevron deference and conclude, as the title suggests, that “Chevron-style deference is inevitable in the modern administrative state.” Check out Adrian Vermeule’s Jotwell review of the article from a couple weeks ago.]
  1. Attacking Auer and Chevron: A Literature Review by Christopher J. Walker (Georgetown Journal of Law & Public Policy forthcoming) [CJW Note: This is my contribution to a symposium issue based on a conference hosted by Georgetown’s Center for the Constitution and the Institute for Justice in March. As the title suggests, this is a short literature review of sorts of the arguments raised in recent years to eliminate, or at least narrow, administrative law’s judicial deference doctrines.]
  1. The Legal Problems (So Far) of Trump’s Deregulatory Binge by Lisa Heinzerling (Harvard Law & Policy Review forthcoming) [CJW Note: Heinzerling pulls no punches in criticizing the current administration’s approach to deregulation, in particular delaying or withdrawing regulations promulgated by the prior administration.]
  1. The Bureaucrats of Private Law by Hanoch Dagan & Roy Kreitner [CJW Note: This is a brilliant and elegant essay. Go read it. The notion that many agencies today primarily, or at least significantly, regulate interpersonal relationships (think CFPB and OSHA) should encourage us to re-theorize the roles of these “private law bureaucrats” in the regulatory state.]
  1. ‘Better Off, as Judged by Themselves’: Bounded Rationality and Nudging by Cass R. Sunstein (Routledge Handbook on Bounded Rationality forthcoming) [CJW Note: Three Sunstein papers in one top ten list! I believe this is a first, but hardly a surprise.]
  1. Restoring Congress’s Role in the Modern Administrative State by Christopher J. Walker (Michigan Law Review forthcoming) [CJW Note: This is my review of Josh Chafetz’s new book Congress’s Constitution. I’ll be talking more about this review at the Federalist Society National Lawyers Convention next week.]
  1. Restoring the Lost Anti-Injunction Act by Kristin E. Hickman & Gerald Kerska (Virginia Law Review forthcoming) [CJW Note: This paper could not have been better timed, in light of the Texas federal district court’s ruling in Chamber of Commerce v. IRS, in which the court held that the Anti-Injunction Act does not bar pre-enforcement judicial review of certain Treasury regulations.]

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 December with the next edition.

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