Notice & Comment

Notre Dame Law Review Symposium “Administrative Lawmaking in the 21st Century,” by Jeffrey Pojanowski

pojanowski_2015This Friday, November 10, 2017, the Notre Dame Law Review will be hosting its annual symposium. Entitled “Administrative Lawmaking in the 21st Century,” the proceedings will be published in Volume 93 of the Law Review, but are of immediate interest to Notice and Comment readers. The slate of presenters is a veritable “who’s who” of established and rising administrative law stars, including a number of Notice & Comment contributors. Notre Dame prides itself on its public law curriculum and scholarship, and I could not be more proud of the conference the Law Review has put together.

The keynote speaker will be Judge Thomas M. Hardiman of the U.S. Court of Appeals for the Third Circuit. Diligent readers of this blog may remember my quick look at his deference jurisprudence in the lead-up to the last SCOTUS nomination. As my blog post noted, Judge Hardiman has not weighed in at great length on administrative law issues, so seeing what he has to say in this forum will be fascinating, especially with one of Judge Hardiman’s Third Circuit colleagues recently flying the Thomas/Gorsuch flag of Chevron and Auer skepticism.

The three panels will be excellent. The first panel, which I will moderate, focuses on separation of powers. Minnesota’s Kristin Hickman will present “Symbolism and Separation of Powers in Agency Design.” Boston University’s Jack Beermann will talk about “The Never Ending Assault on the Administrative State.” Notice & Comment contributor Aditya Bamzai of the University of Virginia will present “The President’s Removal Power over Non-Article III Courts.”

The second panel, moderated by Tricia Bellia, will look at the future of judicial review in administrative law. Adam White wears three hats: Executive Director for the Center for Study of the Administrative State; research fellow at the Hoover Institution; and contributor to Notice & Comment. In “Are Executive Orders a ‘Trump Card’ in the Rulemaking Process?,” he will address judicial scrutiny of presidential choices of policymaking format. The remaining troika on the panel will focus on Chevron, with Georgia’s Kent Barnett and [the] Ohio State’s (and Notice & Comment blog czar) Chris Walker presenting “Chevron’s Step Two Domain” and San Diego’s Mila Sohoni discussing “King’s Domain.”

(Chris can take comfort that, while Ohio State currently lags Georgia and Notre Dame in the College Football Playoff rankings, it is still ahead of USD. The moderator will restrain native Hawkeye Adam White from crowing too much.)

The symposium rounds out with a third panel, moderated by John Nagle, focusing on the operation of agencies themselves. Aaron Nielson, of BYU and D.C. Circuit Review fame, will present the results of his empirical study on “How Agencies Chose Whether to Enforce the Law.” Following on that theme, Urska Velikonja of Georgetown will discuss her paper “Patterns of Nonenforcement.” UCLA’s Jon Michaels, on the heels of his important new book, Constitutional Coup—itself the subject of a future Notice & Comment symposium—will present “The American Deep State.”

In short, we are not running with the B Team at Notre Dame this Friday. If you happen to be nearby Notre Dame, please come. You can even get CLE credit.


Jeffrey Pojanowski is Professor of Law at Notre Dame Law School.


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