Equity and the Administrative State Webinars

The Biden Administration has made the push for equity across the federal government a centerpiece of its policy agenda.

In light of that push, the Gray Center invited a small group of authors to contribute essays to elevate the discussion around how recent equity mandates shape (or should shape) the administrative state.

The essays will appear in the Georgetown Journal of Law & Public Policy later this year.

Ahead of publication, the authors discussed their essays and related issues in two webinars, hosted by the Gray Center.

Panelists include:

• David Bernstein, University Professor of Law; Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University
• Jonathan Berry, Managing Partner, Boyden Gray PLLC
• Ming H. Chen, Professor of Law; Harry & Lillian Hastings Research Chair; Director of the Center on Race, Immigration, Citizenship and Equality, University of California Law San Francisco
• Kmele Foster, Head of Content, Founders Fund
• Renée M. Landers, Professor of Law; Faculty Director, Health and Biomedical Law Concentration and Master of Science in Law: Life Sciences program, Suffolk University Law School
• Jesse Merriam, Associate Professor of Government, Pre-Law Advisor, Patrick Henry College
• Joy Milligan, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law, University of Virginia School of Law
• Bijal Shah, Associate Professor; Provost Faculty Fellow, Boston College Law School

On Thursday, February 22, panelists discussed Racial Classifications and Democratic Institutions.

On Friday, February 23rd, panelists discussed Equity and the Administrative State.

About David Bernstein

David E. Bernstein holds a University Professorship chair at the Antonin Scalia Law School, where he has been teaching since 1995. He has also been a visiting professor at the University of Michigan, Georgetown University, William & Mary, Brooklyn Law School, the University of Turin, and Hebrew University. Professor Bernstein teaches Constitutional Law, Evidence, and Products Liability.

A prolific author, Professor Bernstein often challenges conventional wisdom with prodigious research and sharp, original analysis. He is the author of five books and coauthor of two more. Professor Bernstein’s book Rehabilitating Lochner was praised across the political spectrum as “intellectual history in its highest form,” a “fresh perspective and a cogent analysis,” “delightful and informative,” “sharp and iconoclastic,” and “a terrific work of historical revisionism.” Columnist George Will praised Bernstein’s most recent book, Classified, The Untold Story of Racial Classification in America, as “perhaps the most consequential American book of 2022.”

Professor Bernstein has also written dozens of articles and essays published in major law reviews, including the California Law Review, Columbia Law Review, Michigan Law Review, and Yale Law Journal. An article he coauthored, Defending Daubert: It’s Time to Amend Federal Rule of Evidence 702, directly inspired a pending amendment to Rule 702.

Professor Bernstein blogs at the Instapundit.com, the Times of Israel, and the Volokh Conspiracy. He is a graduate of the Yale Law School, where he was senior editor of the Yale Law Journal and a John M. Olin Fellow in Law, Economics, and Public Policy.

About Jonathan Berry

Jonathan Berry provides strategic counsel and litigates on issues at the intersection of law, politics, and public policy. He helps his clients navigate the emerging field of bureaucratic overlap in government, corporate America, and capital markets, especially in matters relating to environmental, social, and governance factors. Mr. Berry also litigates complex constitutional and administrative law issues and appeals, particularly in labor, employment, and benefits policy. His commentary has been published by the Wall Street Journal, the New York Times, and First Things.

In government, Mr. Berry headed the regulatory office at the U.S. Department of Labor, where he oversaw the development process of dozens of proposed and final rules. As the Regulatory Policy Officer, he regularly represented the Department to the Executive Office of the President and the Office of Management and Budget. During Mr. Berry’s tenure, the Office of Information and Regulatory Affairs credited the Department of Labor with over ten billion dollars in deregulatory cost savings for the American public.

Mr. Berry previously served at the Department of Justice’s Office of Legal Policy, where he assisted with the confirmations of Associate Justice Neil Gorsuch and dozens of other federal judges, and also with the development of the Sessions and Brand memos on proper use of subregulatory guidance documents. He also served as Chief Counsel to the President-Elect Trump Transition, advising on ethics and legal policy.

Before his executive branch service, Mr. Berry worked at the international law firms of Morgan, Lewis & Bockius LLP and Jones Day, where he focused on regulatory and appellate litigation. He served on teams that brought the King v. Burwell Affordable Care Act challenge to the Supreme Court; defended Virginia Governor Robert McDonnell against a corruption prosecution that was ultimately vacated by the Court; and protected the Bladensburg WWI Veterans Memorial in Establishment Clause litigation that led to a landmark victory in the Court.

Mr. Berry graduated with Distinction in the Major from Yale College, where he was a National Merit Scholar and served as Speaker of the Yale Political Union. He later graduated from Columbia University School of Law, where he received the E.B. Convers Prize for best original legal writing, served as Executive Editor of the Columbia Journal of Law and Social Problems, and won National Chapter of the Year from the Federalist Society.

Mr. Berry previously served as a law clerk to Judge Jerry E. Smith of the United States Court of Appeals for the Fifth Circuit, and to Associate Justice Samuel A. Alito, Jr., of the Supreme Court of the United States.

About Ming H. Chen

Ming Hsu Chen is a Professor of Law and Faculty-Director of the Race, Immigration, Citizenship, and Equality Program. She teaches courses in Constitutional Law, Legislation and Administrative Regulation, Citizenship, and Immigration. Professor Chen brings an interdisciplinary perspective to the study of race, immigration, and the administrative state. Her scholarship is published in leading law reviews and social science journals. She is author of Pursuing Citizenship in the Enforcement Era (Stanford University Press 2020), on which she gave a TEDx Talk in 2020. She serves as Co-Editor for the Immigration Prof blog (@immprof) and the executive committee for the AALS Immigration Section and the Law and Society Association’s Citizenship and Migration Section.

Professor Chen was previously a professor of law, political science, and ethnic studies at the University of Colorado Boulder where she founded the Immigration and Citizenship Law Program. She has served on the Colorado state advisory council to the U.S. Commission on Civil Rights. Prior to joining the legal academy, Professor Chen clerked for the Honorable James R. Browning on the U.S. Court of Appeals, Ninth Circuit in San Francisco and earned degrees from the University of California Berkeley (Ph.D 2011), New York University Law School (JD 2004), and Harvard College (AB 2000).

About Kmele Foster

Kmele Foster is Head of Content at Founders Fund. He is a media entrepreneur, commentator, and regular contributor to various national publications. Prior to Founders Fund, Mr. Foster was a partner at Freethink, a digital media company focused on the people and ideas changing our world.

Mr. Foster is a regular contributor to various national media programs and co-founded the popular media criticism podcast “The Fifth Column.”

Mr. Foster is a staunch defender of free speech and serves on the Board of Directors of the Foundation for Individual Rights and Expression.

About Renée M. Landers

Professor Renée Landers is a Professor of Law, Faculty Director of the Health and Biomedical Law Concentration and the Masters of Science in Law: Life Sciences program at Suffolk University Law School in Boston.

She was a Distinguished Visiting Fellow at the National Academy of Social Insurance during her fall 2018 sabbatical leave. She was also the President of the Boston Bar Association in 2003-2004, and was the first woman of color and the first law professor to serve in that position. Professor Landers has worked in private practice and served as Deputy General Counsel for the U.S. Department of Health and Human Services and as Deputy Assistant Attorney General in the Office of Policy Development at the U.S. Department of Justice during the Clinton Administration.

Professor Landers served as Chair of the Section of Administrative Law and Regulatory Practice of the American Bar Association in 2016 – 2017 and chaired the Section’s Nominating Committee in 2018 – 2019. She is a Trustee of the Massachusetts General Hospital and New England Donor Services and is a former Trustee of the Massachusetts Eye & Ear Infirmary. In 2019, she rejoined the board of Planned Parenthood League of Massachusetts and became President of the Board beginning in July 2020. Recently, she co-chaired the Boston Bar Association’s Task Force on Judicial Independence which issued a report in August 2019. She was a member of the Massachusetts Commission on Judicial Conduct and served as Vice Chair of the Commission from 2009 to 2010. She also served on the task force that drafted the revised Massachusetts Code of Judicial Conduct effective in 2016 and currently is a member of the Committee on Judicial Ethics which advises judges on compliance with the Code. Previously, she was a member of the Supreme Judicial Court’s committees studying gender bias and racial and ethnic bias in the courts.

An elected member of the National Academy of Social Insurance since 2008, she is Vice President of the NASI Board of Directors. Landers was a member of the Academy’s study panels on Strengthening Medicare’s Role in Reducing Racial and Ethnic Health Disparities, Health Insurance Exchanges, and Examining Approaches to Expand Medicare Eligibility. She currently co-chairs a study panel on Economic Security. She is the author of articles on the potential for Massachusetts health care reform initiatives to eliminate racial and ethnic disparities in health care and aspects of the Affordable Care Act. In addition to health care, Landers has written on diversity in the legal profession and privacy and is a regular commentator on legal developments in constitutional law, health law, and administrative law for media organizations.

In summer 2019, she was appointed to serve as an observer representing the ABA Section of Administrative Law & Regulatory Practice on a Telehealth Study Committee. And, after March 2020, she was appointed to serve as an observer representing the ABA Section of Administrative Law & Regulatory Practice on a Public Health Emergencies Study Committee.

Professor Landers has served as the president of the Boards of Big Sister Association of Greater Boston, the Shady Hill School, the Harvard Board of Overseers, and has also served on the Board of WGBH and the Board of Overseers of Geisel School of Medicine at Dartmouth. She is a member of the American Law Institute and Phi Beta Kappa, and has received awards from Radcliffe College, Boston College Law School, Harvard College, the Big Sister Association of Greater Boston, the Boston Bar Association, the Massachusetts Women’s Political Caucus, and the Greater Boston Chamber of Commerce Women’s Network. In November 2018 she was elected a Fellow of the ABA Section of Administrative Law and Regulatory Practice.

About Jesse Merriam

Jesse Merriam teaches courses in constitutional law, legal theory, and legal reasoning. Before coming to Patrick Henry College, he served for six years as an assistant professor of political science and the pre-law advisor at Loyola University Maryland. He also worked as an appellate litigator at a D.C. constitutional law firm and as a research associate at the Pew Research Center’s Forum on Religion & Public Life.

He has published over a dozen academic articles in top law-review and peer-reviewed journals, covering such diverse topics as legal conservatism, the meaning of the rule of law, church-state relations, and the theory and practice of originalist constitutional interpretation. Dr. Merriam has also published over 20 online articles, appearing in such places as Law and Liberty, The American Mind, National Review Online, The American Conservative, American Greatness, and Claremont Review of Books.

In 2019-2020, Dr. Merriam was selected to be the Visiting Fellow in American Political Thought at the Heritage Foundation’s B. Kenneth Simon Center for Principles and Politics. He is currently a research fellow at the Claremont Institute’s Center for the American Way of Life.

Dr. Merriam lives in an 1840s stone farmhouse in Frederick County, Maryland with his wife and four children. When he is not teaching and writing about constitutional law, he enjoys spending time with his family, lifting weights, and developing the family homestead.

About Joy Milligan

Joy Milligan studies the intersection of law and inequality, with a particular focus on race-based economic inequality. Her scholarship is interdisciplinary, drawing on social science theory and methods, and has been published in the Yale Law Journal, Virginia Law Review, UCLA Law Review, NYU Law Review, Annual Review of Law & Social Science, and the Journal of Legal Education. Her current work examines the legal and political struggles over federal administrators’ long-term role in extending racial segregation.

Before entering academia, Milligan practiced civil rights law at the NAACP Legal Defense and Educational Fund Inc., where she was a Skadden Fellow, and clerked for Judge A. Wallace Tashima of the U.S. Court of Appeals for the Ninth Circuit. Milligan is a member of the state bars of California and New York. She graduated magna cum laude from New York University Law School, where she was a Furman Scholar and Fellow, and an articles editor of the NYU Law Review. She earned a Ph.D. in jurisprudence and social policy from the University of California, Berkeley, with a focus on race, politics and legal history. She also holds an M.P.A. from Princeton University and an A.B. in social studies, magna cum laude, from Harvard-Radcliffe. Before attending law school, Milligan spent several years founding a nonprofit bicycle recycling project in the northwest Dominican Republic.

About Bijal Shah

Bijal Shah is an associate professor and Provost Faculty Fellow at the Boston College Law School, and the recipient of the Boston College Law School Faculty Prize for Excellence in Scholarship in 2023. Before joining BC Law, she was an associate professor at the Arizona State University, Sandra Day O’Connor College of Law and an acting assistant professor at the NYU School of Law. In Spring 2022, she was a visiting professor at the U.C. Berkeley School of Law.

Shah’s research focuses on administrative law and structural constitutionalism, and is grounded in the specifics of agency dynamics (particularly in matters of immigration and interagency coordination). She is also developing critical theories in these areas of law. Her work appears in publications including the Harvard Law Review, Stanford Law Review, Yale Journal on Regulation, and the Minnesota Law Review, among others. Her new project, Administrative Subordination, forthcoming in The University of Chicago Law Review, argues that the administrative pursuit of important public interest values harms noncitizens and contributes to environmental injustice.

In addition, Shah is the Chair Emeritus of the Association of American Law Schools Section on Legislation & Law of the Political Process. She is also an Academic Consultant to the Administrative Conference of the United States (ACUS) Council on Federal Agency Adjudication. Furthermore, Shah is delighted to be the co-creator of a new colloquium on Critical Public Law and a co-organizer of the well-established Power in the Administrative State workshop.

Before entering the academy, Shah was Associate General Counsel for the Department of Justice/Executive Office for Immigration Review. In this position, she wrote immigration regulations, legislation and national policies on behalf of the Attorney General, White House, and Congress. Earlier in her career, Shah served as a Presidential Management Fellow in the Department of Homeland Security/U.S. Citizenship and Immigration Services, and served details in the Department of Justice, Homeland Security headquarters, and State Department.

Shah is a graduate of the Yale Law School, where she was a senior editor on the Yale Law Journal and a Yale University Kirby Human Rights Fellow. Shah is also a graduate of the Harvard University Kennedy School of Government and a Harvard University Sinclair Kennedy Fellow. Before entering law school, Shah was an investment banker at UBS PaineWebber.