Yes, this is coming out a few weeks late. It’s been a busy month here, including a six-day trip to Vegas for my twentieth high school reunion. Jen and I decided to fly out with all four little kids, which helped me better understand the difference between a “vacation” and a “family vacation.”
But September was a great month for adlaw scholarship. Here is the September 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.
- Misconceptions About Nudges by Cass R. Sustein [CJW Note: Wow, 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.]
- 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 want 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 across the country.]
- Presidential Administration Under Trump by Daniel A. Farber [CJW Note: Farber revisits Justice Kagan’s classic Harvard Law Review article Presidential Administration, which was written based on then-Professor Kagan’s experience in the Clinton White House. Spoiler Alert: Farber is not a fan of presidential administration in the current Republican presidential administration.]
- Marbury v. Madison and the Concept of Judicial Deference by Aditya Bamzai (81 Missouri Law Review 1057 (2016)) [CJW Note: This is a great essay that Bamzai wrote for a fun symposium in the Missouri Law Review, in which I also participated.]
- 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.” Watch the Jotwell space in the coming days for a review of the article by Adrian Vermeule.]
- Justice Scalia and the Evolution of Chevron Deference by Aditya Bamzai (21 Texas Review of Law & Politics 295 (2017)) [CJW Note: Aditya has been busy. This is a short speech on Justice Scalia’s jurisprudence on judicial deference to agency legal interpretations.]
- Reviewability and the ‘Law of Rules’: An Essay in Honor of Justice Scalia by Adrian Vermeule (92 Notre Dame Law Review 2163 (2017)) [CJW Note: I’m still digesting, but this is a really fascinating distinction between Justice Scalia’s and Justice Stevens’s approach to judicial review in administrative law.]
- 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.]
- Further from the People? The Puzzle of State Administration by Miriam Seifter (New York University Law Review forthcoming) [CJW Note: This article dives into the role of civil oversight of agencies at the state level and argues that such oversight is weaker than at the federal level. Seifter presented an earlier draft of this paper at the Second Annual Administrative Law New Scholarship Roundtable.]
- Presidential Administration in a Regime of Separated Powers: An Analysis of Recent American Experience by Jerry Louis Mashaw & David Berke (Yale Journal on Regulation forthcoming) [CJW Note: I was so excited to see a new article by Jerry Mashaw, the administrative law scholar whose work most influenced me to become an academic. Like the Farber article, this article by Mashaw and Berke criticizes the Kagan-style presidential administration. The article presents three in-depth case studies (climate change, immigration, and OIRA/OMB presidential oversight) to flesh out the criticism.]
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 November with the next edition.