Arbitrary and Capricious

The Podcast of the C. Boyden Gray Center for the Study of the Administrative State

 

Welcome to “Arbitrary & Capricious,” a podcast focused on the issues being debated around the modern administrative state — some timeless ones, and some new ones. Here you will find audio from Gray Center events, and other interviews and debates with scholars, practitioners, and policymakers.

Our podcast isn’t arbitrary and capricious, but sometimes agencies are, so we will have much to discuss.


Episodes

Episode 53: “Reviving Rationality” with Michael Livermore and Richard Revesz

In 2008, Michael Livermore and Richard Revesz wrote Retaking Rationality, a book arguing that cost-benefit analysis of regulations should be recognized not as an anti-regulatory weapon, but rather a nonideological tool for promoting good government. Now they return with a new book, Reviving Rationality, which analyzes developments since 2008, and proposes further reforms for cost-benefit analysis going forward. They discuss it with the Gray Center’s Executive Director, Adam White.


Episode 52: The Unrule of Law as the Law of Unrules, with Cary Coglianese and Daniel Walters

Governments make rules. But governments often grant exemptions from those rules, either when the rules are written or in the ways they are enforced. And those exemptions are the subject of a new article: “Unrules” by Cary Coglianese, Gabriel Scheffler, and Daniel Walters.

Professors Coglianese and Walters are our guests today. They describe the two main categories of unrules (“dispensations” and “carve-outs”) and consider how administrative law might be reoriented to better account for them.


Episode 51: How Chief Justice Taft Wrote the Famous Myers Opinion, with Robert Post

The Supreme Court’s recent decision in Seila Law v. CFPB, and the upcoming case of Collins v. Mnuchin, return our attention to the Constitution’s allocation of powers among the President and Congress—and to the famous cases nearly a century ago when the Supreme Court tried to grapple with those issues amid the rise of the modern administrative state.

As it happens, Professor Robert Post of the Yale Law School is also thinking back to that era, as he writes the next volume of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. He gives us a preview in a fascinating and entertaining article for the Journal of Supreme Court History, titled “Tension in the Unitary Executive: How Taft Constructed the Epochal Opinion of Taft v. United States.” (Also available to read at SSRN.)

In this episode, he discusses the case (and some amusing examples of Chief Justice Taft’s voluminous correspondence) with Adam White. Adam previously wrote about Professor Post’s article at the Yale J-Reg’s Notice and Comment blog.

This episode features Robert Post and Adam White.


Episode 50: Annual Supreme Court Preview: 2020-2021

Last summer, the Supreme Court ended its year’s work with significant decisions involving administrative agencies. This new year now underway is set to include major cases involving agency structure and independence; transparency; and a host of other issues.

To discuss these issues and broader themes of administrative governance, the Gray Center’s annual Supreme Court preview featured three experts: Jonathan Adler of the Case Western Reserve University, Aditya Bamzai of the University of Virginia, and Katie Townsend of the Reporters Committee for Freedom of the Press. The discussion, in a live webinar on October 23, 2020, was moderated by our Executive Director, Adam White.

This episode features Jonathan Adler, Aditya Bamzai, Katie Townsend, and Adam White.


Episode 49: The Clean Air Act and the Transformation of Congress: Frank Manheim and David Schoenbrod (Congress and the Administrative State Series)

Congress’s enactment of the Clean Air Act fifty years ago was meant to change our environmental impacts — but did it change Congress, too? That is the question that Prof. Frank Manheim of George Mason University’s Schar School of Public Policy asks in his new working paper, “Transformation of Congressional Lawmaking by the Clean Air Act of 1970 and Its Effects.”

In this episode, part of the Gray Center’s “Congress and the Administrative State” conference series, Prof. Manheim and Adam White are joined by Prof. David Schoenbrod, a Trustee Professor of Law at the New York Law School and a Senior Fellow at the Niskanen Center, to talk about environmental law and modern lawmaking.

This episode features Frank Manheim, David Shoenbrod, and Adam White.


Episode 48: Thinking About “The Congressional Bureaucracy,” with Abbe Gluck, Jesse Cross, and Josh Chafetz (Congress and the Administrative State Series)

The executive branch’s bureaucracy gets a lot of attention. But Congress’s bureaucracy gets much less—yet it is extremely important. In a new Gray Center working paper titled “The Congressional Bureaucracy,” Professors Abbe Gluck and Jesse Cross analyze several parts of Congress’s bureaucracy—some well-known, like the Government Accountability Office, and others less so, like the Office of Law Revision Counsel.

In this episode, they discuss their new paper with Gray Center Executive Director, Adam White, and Professor Josh Chafetz. Together, they consider what “the congressional bureaucracy” tells us about Congress itself and the laws that it enacts.

This episode features Josh Chafetz, Jesse Cross, Abbe Gluck, and Adam White.


Episode 47: Congress and Cost-Benefit Analysis, with Caroline Cecot and Ricky Revesz (Congress and the Administrative State Series)

We often think of modern cost-benefit analysis as being a requirement primarily of executive orders, not statutes. Needless to say, Executive Order 12291 and 12866, and other executive orders and presidential documents, are of central importance. But Congress has done much on matters of cost-benefit analysis, too, often requiring agencies to consider costs and benefits, and sometimes even requiring rules to be net-beneficial.

Professor Caroline Cecot of George Mason University’s Antonin Scalia Law School explores this in her new Gray Center working paper, “Congress and the Stability of the Cost-Benefit Analysis Consensus.” She discusses it in today’s episode, with Gray Center Executive Director Adam White and with Professor Ricky Revesz, NYU’s Lawrence King Professor of Law and Director of the Institute for Policy Integrity.

This episode features Caroline Cecot, Ricky Revesz, and Adam White.


Episode 46: Congressional Reform from 1981 Onward: Philip Wallach and Molly Reynolds (Congress and the Administrative State Series)

In 1994, Republicans won control of the House of Representatives for the first time in 50 years. Upon taking office, Speaker Newt Gingrich and his colleagues undertook major institutional reforms. What do those reforms tell us about conservatives’ modern views of the Constitution’s first branch of government, and how did those reforms affect Congress’s relationship to the President and administrative agencies?

This episode, part of the Gray Center’s “Congress and the Administrative State” conference series, centers around Philip Wallach’s new working paper, “The Revolution That Wasn’t: Conservatives Against Congress, 1981–2018.” He discusses the paper with the Brookings Institution’s Molly Reynolds, and the Gray Center’s Adam White.

This episode features Molly Reynolds, Philip Wallach, and Adam White.


Episode 45: “The Decision of 1946: The Legislative Reorganization Act and the APA,” with Joseph Postell and Jeremy Rabkin (Congress and the Administrative State Series)

Administrative Law scholars think of 1946 as the year that Congress enacted the Administrative Procedure Act (APA). But too often we neglect another major law that Congress enacted in that year: the Legislative Reorganization Act (LRA).

The LRA was intended to position Congress for long-term management of the administrative state. But its proponents were disappointed to see major provisions dropped from the final bill, and after its enactment the LRA generally failed to live up to its framers’ expectations.

How can the LRA inform debates about Congress today? And how should the LRA help us to understand the 1946 Congress’s goals for the APA itself?

Professor Joseph Postell of Hillsdale College explores this in his new Gray Center working paper, “The Decision of 1946: The Legislative Reorganization Act and the Administrative Procedure Act.” He discusses it in today’s episode with Adam White and with Jeremy Rabkin of the Antonin Scalia Law School.

This episode features Joseph Postell, Jeremy Rabkin, and Adam White.


Episode 44: Joshua Wright on “Weaponizing Antitrust” Against Tech Companies

Today’s guest is Professor Joshua Wright — a University Professor of Law at George Mason University, Director of the law school’s Global Antitrust Institute, a former FTC Commissioner, and one of the nation’s leading scholars of antitrust law and policy. Professor Wright and Jan Rybnicek recently co-authored an essay on recent calls to use antitrust law to regulate or break up “big tech” companies. The essay is titled “A Time for Choosing: The Conservative Case Against Weaponizing Antitrust,” and it is among the first essays in a series published by National Affairs, a quarterly journal on policy.

The series, edited by the Gray Center’s Executive Director, Adam White, is “Big Tech, Big Government: The Challenges of Regulating Internet Platforms.” In this episode, Professor Wright discusses his essay, particularly in light of the new House Judiciary Committee staff report calling for government regulation or break-up of Amazon, Apple, Facebook, and Google.

This episode features Joshua Wright and Adam White.


Episode 43: After 50 Years, What Is the National Environmental Policy Act Today?

On September 24, 2020, the Gray Center co-hosted a live webinar, “After 50 Years, What Is the National Environmental Policy Act Today?” in partnership with Antonin Scalia Law School’s Society for Environmental and Energy Law. On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law. A briefly worded but powerful law, NEPA requires federal agencies to consider the environmental impacts of the actions that they take, and the actions that they authorize others to take.

Fifty years later, how should we think of how NEPA has been implemented, and how it might be implemented in the years ahead? This webinar brought together two leading experts to tackle these questions: Professor E. Donald Elliott of Scalia Law, Yale Law, and Covington & Burling; and Professor Michael Gerrard of Columbia Law. The discussion was moderated by the Gray Center’s Executive Director, Adam White, with welcome remarks from Scalia Law student Gary Bridgens, president of the Society for Environmental and Energy Law.

This episode features Gary Bridgens, E. Donald Elliott, Michael Gerrard, and Adam White.


Episode 42: Adam Mossoff on the Innovation Economy and the Administrative State

Today’s guest is Professor Adam Mossoff, a leading scholar of intellectual property and Co-Founder of Scalia Law’s Center for the Protection of Intellectual Property (CPIP). Three years ago, CPIP and the Gray Center co-hosted a major conference on the Patent Trial and Appeal Board (PTAB), a new regulatory body empowered to revoke companies’ patents through an administrative process instead of a judicial trial. Months later, in Oil States Energy Services v. Greene’s Energy Group, the Supreme Court upheld the PTAB’s constitutionality, and declared patent rights to be “public rights”—a discretionary grant of privilege by the executive branch, revokable at will. This decision had major ramifications for both intellectual property law and the innovation economy that rests on that body of law. In today’s episode, Professor Mossoff and Adam White revisit the Oil States decision—the issues, and the impact.

This episode features Adam Mossoff and Adam White.


Episode 41: Teaching Administrative Law Outside the Classroom: Ballotpedia’s Christopher Nelson

We admit it, administrative law is a complicated subject — and, some say, a notoriously dull one. AdLaw is often a challenging subject to teach in the classroom, and even more challenging outside of it. The Gray Center is only one of several institutions that attempt to bring these issues to non-specialists. Another is Ballotpedia.org: Two years ago it created an Administrative State Project to serve as a public resource on administrative law, and today its encyclopedic website offers hundreds of pages of educational materials on the administrative state’s modern work and historical underpinnings. In this episode, Adam is joined by Christopher Nelson, who manages Ballotpedia’s Administrative State Project.

This episode features Christopher Nelson and Adam White.


Episode 40: Tech Regulation Series Keynote Conversation with FTC Commissioner Noah Phillips

The Federal Trade Commission is a century-old agency facing some of the most cutting-edge technologies and issues of our time. How should an agency apply old laws to new technologies?

To conclude the Gray Center’s series of podcast conversations on innovation and regulation, Commissioner Noah Phillips joins Adam White to discuss issues ranging from the nondelegation doctrine, to agency structure and process, to issues like market competition and personal privacy. This live webinar was recorded on September 2, 2020.

This episode features Noah Phillips and Adam White.


Episode 39: Rethinking Regulatory Paradigms in a High-Tech Era

During this era of disruptive technological change, heavy-handed regulation can stifle innovation and unintentionally undermine the public interest. Yet regulators are tasked by Congress with promoting particular policies, often under old statutes with outdated information. How can regulators best do their jobs in a way that promotes innovation and the public interest?

In a pair of new Gray Center working papers, Gus Hurwitz (University of Nebraska) and Geoffrey Manne (International Center of Law & Economics) offer two new ways to think of the regulatory task: “Regulation as a Discovery Process,” in which the regulatory process is geared toward promoting the creation and spread of knowledge; and “Regulation as Partnership,” in which the regulators and the regulated see each other in less adversarial terms.

To discuss these papers, our Executive Director Adam White interviews Hurwitz, Manne, and Jennifer Huddleston (American Action Forum) to describe the biggest opportunities—and biggest problems—presented in Manne’s and Hurwitz’s proposed reforms.

This episode features Jennifer Huddleston, Gus Hurwitz, Geoffrey Manne, and Adam White.


Episode 38: Airbnb and Local Regulators

Conversations about “the administrative state” usually focus on federal regulators, but for many upstart tech companies, *local* regulation often presents the most significant challenges. Uber and Lyft, for example, famously collided with local taxicab regulations. And “short-term rental” companies like Airbnb have faced countless regulations from countless regulators.

That is the subject of a new Gray Center Working Paper by Professor Jordan Carr Peterson (North Carolina State). In “Zoning for Disruption,” he finds that Airbnb’s arrival in a city can trigger significant regulatory responses not spurred by less-famous short-term rental companies. He describes that dynamic, and the wide range of regulations at issue.

To discuss his paper, and broader issues of regulation and short-term rentals, Adam White and Professor Peterson are joined by the University of Idaho’s Professor Stephen Miller and Airbnb’s former Head of Policy Strategy, David Owen.

This episode features Jordan Carr Peterson, Stephen Miller, David Owen, and Adam White.


Episode 37: “Section 230” and the Regulation of Web Sites

Nearly 25 years ago, Congress enacted Section 230 of the Communications Decency Act, declaring web sites would not be treated as “publishers” in posting third-party statements, and that their “good faith” efforts to edit or moderate content would not expose them to legal liability. In those days, this legal protection helped the early generation of Internet web sites grow and change the world. Today, Section 230 has become the central focus of debates surrounding Facebook, Twitter, and other Internet platforms.

In this episode, Enrique Armijo (Elon University) and Matthew Feeney (Cato Institute) join Adam White to discuss the Gray Center Working Papers that they recently published on the Section 230 debates, and the broader technological and policy issues at stake.

This episode features Enrique Armijo, Matthew Feeney, and Adam White.


Episode 36: The Common Good: Rebuilding Trust and Rebooting the System with Philip Howard

Philip Howard, a lawyer and author, founded Common Good to call for fundamental reform of America’s bureaucratic, legal, and political institutions. And he sees the nation’s most recent controversies—government responses to Covid-19, and episodes of police misconduct—as exemplifying the breakdown of governance and social trust. In a July op-ed for USA Today, he wrote that “America needs a new public operating system that re-empowers people with responsibility to deal sensibly with” matters of governance.

How would we “reboot” America’s “operating system”? And, more fundamentally, what is “the common good”—and how can Americans work together to advance it? To discuss these themes, he joins Adam White for today’s episode.

This episode features Philip Howard and Adam White.


Episode 35: Minutes to Midnight, or Four More Years: The Regulatory Agenda with Bridget Dooling & Philip Wallach

The fourth year of any presidential term is driven by a sense of urgency, and the administration’s regulatory or deregulatory agenda is no exception. President Trump’s fourth year has been further complicated by the Covid-19 outbreak, and the administration’s regulatory and deregulatory responses. To put the last few months into perspective and to look ahead to the coming months, Adam White chats with Bridget Dooling of George Washington University’s Regulatory Studies Center, and Philip Wallach of the R Street Institute.

This episode features Bridget Dooling, Philip Wallach, and Adam White.


Episode 34: Executive Privilege: A Discussion with Dean Mark Rozell

The words “executive privilege” are not found in the Constitution, but some form of presidential secrecy has been asserted by presidents from George Washington onward. The Supreme Court’s latest term ended with major decisions in two cases involving executive privilege: Trump v. Mazars USA, involving subpoenas from the House of Representatives; and Trump v. Vance, involving subpoenas from a New York district attorney. To discuss the history of executive privilege and modern developments, Adam White is joined by Mark Rozell, Dean of George Mason University’s Schar School of Public Policy and Government, and co-author of the newly published fourth edition of “Executive Privilege: Presidential Power, Secrecy, and Accountability.”

This episode features Mark Rozell and Adam White.


Episode 33: Evasive Entrepreneurs: Innovation and the Administrative State

How should transformative technologies approach the administrative state, and vice versa? In his latest book, “Evasive Entrepreneurs & the Future of Governance,” Adam Thierer of the Mercatus Center reports that tech companies are finding ways to outpace the regulators—and that this is a very good thing. In this episode, the Gray Center’s Executive Director, Adam White, interviews Thierer about his book (and his previous book, “Permissionless Innovation”), with an eye to how high-tech companies and governments might help improve each other—for all of us.

This episode features Adam Thierer and Adam White.


Episode 32: The Dubious Morality of Administrative Law

On July 6, the Federalist Society invited Adam White to interview Richard Epstein about his new book: “The Dubious Morality of Administrative Law,” for a public teleforum. Adam and Richard had a wide-ranging conversation about the book’s origin and major themes, and then Richard took questions from the audience. Richard previously keynoted two Gray Center conferences.

This episode features Richard Epstein and Adam White.


Episode 31: Tort Liability for Businesses During COVID-19

On June 18, 2020, the Gray Center co-sponsored a live webinar, “A Discussion on Tort Liability for Businesses During COVID-19,” in partnership with the Law and Economics Center at Antonin Scalia Law School. Risks of the COVID-19 spread create substantial uncertainty for businesses when deciding whether to open up and conduct business, especially as they try to identify their duties in preventing COVID-19 related injuries to employees and customers. The live webinar examined the economic and legal arguments for and against COVID-19-related business liability reform.

This episode features Donald J. Kochan, Timothy Lytton, David B. Rivkin, and Adam White.


Episode 30: Non-Presidential Administration

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The fourth and final panel examined non-presidential administration, focusing on two new papers: The first by Yale University’s Brian Libgober on “Agency Failure and Individual Accountability,” and the second on “Judicial Administration” by Arizona State University’s Bijal Shah.

This episode features Brian Libgober, Maureen Ohlhausen, Bijal Shah, and Judge Stephen Williams.


Episode 29: The Tools of Administrative Management

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The third panel looked at the tools of administrative management. It centered around two new papers: One on “Central Clearance as Presidential Management” by Andrew Rudalevige of Bowdoin College, and the other on “Regulating Agencies: Using Regulatory Instruments as a Pathway to Improve Benefit-Cost Analysis” by panelist Christopher Carrigan of the George Washington University’s Trachtenberg School, and his coauthors, Mark Febrizio of the George Washington University Regulatory Studies Center and Stuart Shapiro of Rutgers University.

This episode features Christopher Carrigan, Susan Dudley, Lisa Heinzerling, Andrew Rudalevige, and Philip Wallach.


Episode 28: Bureaucracy and Presidential Administration: Keynote Remarks by Jonathan Rauch

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” At the event, keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution. In his presentation, Mr. Rauch discussed professionalism as a lost virtue in modern life and modern administration.


Episode 27: Presidential Administration and Bureaucracy

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The second panel examined presidential administration and bureaucracy. It revolved around two new papers: “Restoring Accountability to the Executive Branch” by Philip K. Howard of Covington & Burling, and “Presidential Administration, the Appointment of ALJS and the Future of For Cause Protection” by Paul R. Verkuil of the Administrative Conference of the United States.

This episode features Ambassador C. Boyden Gray, Philip K. Howard, Paul R. Verkuil, and Adam White.


Episode 26: Bureaucracy, the Presidency, and the Origins of Federal Civil Service

On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The first panel examined the bureaucracy, the presidency, and the origins of federal civil service. It focused on a new paper titled, “From Merit to Expertise and Back: The Evolution of the U.S. Civil Service System,” by Joseph Postell of the University of Colorado at Colorado Springs.

This episode features Andrew E. Busch, Brian J. Cook, Melanie Marlowe, and Joseph Postell.


Episode 25: What Is the Future of Administrative Law?

With the arrival of new Supreme Court justices, and with the emergence of new debates among scholars like Adrian Vermeule and Philip Hamburger over the Constitution and the administrative state, what will happen to Administrative Law? In a recent Harvard Law Review article, Notre Dame’s Professor Jeffrey Pojanowski assesses the scene and suggests a new school of thought: “Neoclassical Administrative Law.” In this episode, Adam White interviews Professor Pojanowksi about his article, which was workshopped early on at a Gray Center roundtable. They discuss the article and the conversation that it has sparked.

This episode features Jeffrey Pojanowski and Adam White.


Episode 24: Disruptive Technology and the Future of “Law”

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The fourth and final panel looked at disruptive technology and the future of “law.” It centered on two new papers, “Disruptive Deference for Disruptive Technology,” by Jennifer Huddleston, who was at the Mercatus Center at the time the conference was held, and “Will the ‘Legal Singularity’ Hollow Out Law’s Normative Core?” by Georgia State University College of Law’s Robert Weber.

This episode features Joshua Blackman, Jennifer Huddleston, Robert Weber, and Ross Davies.


Episode 23: Artificial Intelligence and the Future of Regulation

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The third panel examined artificial intelligence and the future of regulation and focused on a paper on “Algorithmic Accountability in the Administrative State,” which was co-authored by panelist David Freeman Engstrom of Stanford Law School, and David Ho of Stanford University.

This episode features David Freeman Engstrom, Melissa Netram, Catherine Sharkey, and Adam White.


Episode 22: Technology, Innovation, and Regulation: Keynote Remarks by Kate Lauer

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” Keynote remarks were given by Kate Lauer, an Advisor for Jiko and former Head of Global Regulatory Strategy for PayPal. In her presentation, Lauer discusses her observations on the current regulatory landscape for technology and innovation based on her career assisting tech companies with regulatory requirements.


Episode 21: “Regulatory Sandboxes” and Other Laboratories of Democracy

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The second panel looked at “regulatory sandboxes” and other laboratories of democracy, and focused on a paper titled “The Sandbox Paradox” co-authored by panelist Brian Knight of the Mercatus Center and Trace Mitchell, Research Assistant at the Mercatus Center.

This episode features Remington Gregg, Brian Knight, Kathryn Ciano Mauler, and Paolo Saguato.


Episode 20: Should Social Media Be Regulated for “Neutrality?”

On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The first panel examined whether social media should be regulated for “neutrality,” and focused on a paper by Michigan State University College of Law’s Adam Candeub on “Common Carriage and Section 230.”

This episode features Adam Candeub, Anupam Chander, Andrew Kloster, Lori Moylan, and Adam Thierer.


Episode 19: Judging “Adjudication” with Will Baude

For nearly a century, one of the most contentious issues in the Administrative State has been agency “adjudication” — that is, the power of agencies to adjudicate disputes among private parties, or disputes between private parties and the government. But what if a century’s debate has actually caused us to forget what the issues really are?

In the new issue of the Harvard Law Review, Professor William Baude brings us back to first principles on the question of “Adjudication Outside Article III.” In this podcast, Professor Baude discusses his article with the Center’s Executive Director, Adam White.


Episode 18: Judicial Review and Immigration Law

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The fourth and final panel looked at the role of judicial review in immigration law. The discussion centered around two new papers. The first was “Chevron‘s Asylum: Re-Assessing Deference in Refugee Cases,” by Michael Kagan of the University of Nevada Las Vegas, and the second was “Recalibrating Judicial Review in Immigration Adjudication,” by Christopher Walker of the Ohio State University.

This episode features Michael Kagan, David Rubenstein, Christopher Walker, and Adam White.


Episode 17: Costs of Our Immigration System: Who Does the Burden Fall On?

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The third panel looked at costs of the U.S. immigration system. The discussion centered around two new working papers: First, “Silence and the Second Wall” by panelists Ming Hsu Chen and Zachary R. New. The second paper, “A Seat at the Table for Citizens: Why the National Environmental Policy Act (NEPA) Applies to Immigration and How Best to Implement this Long Overdue Reform” was authored by Julie Axelrod.

This episode features Julie Axelrod, Ming Hsu Chen, Andrew Kloster, Zachary New, and Adam White.


Episode 16: The Administration of Immigration: Keynote Remarks by James McHenry

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The event featured keynote remarks from James McHenry, Director of the Executive Office of Immigration Review at the United States Department of Justice. In his presentation, McHenry describes the work of the Office of Immigration Review and places it into the context of the broader discussions we had on immigration law and policy.


Episode 15: Discussing Delegations

Does the Constitution set limits on the powers that Congress authorizes agencies to exercise? Last year, in Gundy v. United States, Justice Gorsuch issued a dissenting opinion calling for a reinvigorated “nondelegation doctrine.” He was joined by Chief Justice Roberts and Justice Thomas. Gorsuch’s dissent, along with Justice Alito’s separate opinion, and a subsequent opinion from Justice Kavanaugh, have inspired significant new research by a number of legal scholars. One of the first major contributions to this wave of new scholarship is a draft article by Professors Nicholas Bagley and Julian Davis Mortenson.

In this podcast, Professor Bagley is our guest, discussing the issues with the Gray Center’s Executive Director, Professor Adam White.


Episode 14: Is Immigration Law Special? National Security, Special Courts, and “For This Ride Only” Law

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The conference’s second panel looked at national security, special courts, and whether immigration law is special. The discussion revolved around a new working paper on “The Forgotten FISA Court: Exploring the Inactivity of the Alien Terrorist Removal Court” by panelist Aram Gavoor (co-authored by Timothy Belsan).

This episode features Aram Gavoor, Brianne Gorod, Jesse Panuccio, and Ilya Shapiro.


Episode 13: The Moral Underpinnings of Immigration Law

On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” The conference’s first panel looked at moral underpinnings of immigration law. It featured a discussion about three new working papers, one by Craig S. Lerner on “Crimes Involving Moral Turpitude”: The Puzzling and Persistent (and Constitutional) Immigration Law Doctrine,” one by William W. Chip on “E-Verify: Mining Government Databases to Deter Employment of Unauthorized Aliens,” and a paper by Cassandra Burke Robertson on “Litigating Citizenship” (co-authored by Irina Manta).

This episode features William W. Chip, Andrew Kloster, Craig S. Lerner, and Cassandra Burke Robertson.


Episode 12: The IRS, Congress, and the President’s Tax Returns

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law. The panel session from the symposium that is featured in this episode looked at the IRS, Congress, and the President’s tax returns. Speakers discussed a paper titled “The President’s Tax Returns” by Andy Grewal.

This episode features Andy Grewal, Michael L. Stern, Kate Shaw, Elizabeth Wydra, and Adam White.


Episode 11: The Democracy of Administration

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law. The panel session from the symposium that is featured in this episode focused on the democracy of administration. Speakers discussed a paper by Russell L. Weaver, titled “Rulemaking in an Internet Era: Dealing with Bots, Trolls & ‘Form Letters.'”

This episode features Russell L. Weaver, Reeve T. Bull, Maleka Momand, Caroline Cecot, and Adam White.


Episode 10: The Administration of the Census

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law. The panel session from the symposium that is featured in this episode examined the administration of the census, focusing on a paper titled, “Motive and Opportunity: Courts’ Intrusions into Discretionary Decisions of Other Branches—A Comment on Department of Commerce v. New York” by Ron Cass.

This episode features the Honorable Ronald A. Cass, Jesse Panuccio, Allyson N. Ho, Conor Woodfin, and Adam White.


Episode 9: The Administration of Federal Campaign Finance Laws

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law.” The panel session from that symposium that is featured in this episode focused on the administration of federal campaign finance laws. The discussion centered on two new papers: Bradley Smith’s paper, “Feckless: A Critique of Criticism of the Federal Election Commission Structure, and Possible Lessons for the Administration of Campaign Finance and Election Law,” and Richard Pierce’s paper, “A Realistic Version of Campaign Finance Reform and Two Essential Steps Toward a Return to Effective Governance.”

This episode features Bradley A. Smith, Richard J. Pierce, Ciara Torres-Spelliscy, Trevor Potter, Conor Woodfin, and Adam White.


Episode 8: The Administration of Elections

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law.” The panel session from that symposium that is featured in this episode focused on the administration of elections. The discussion revolved around three new papers: “Bush v. Gore, Decentralized Election Administration, and the Equal Protection Right to Vote” by Michael Morley; “How Independent is Too Independent?: Redistricting Commissions and the Growth of the Unaccountable Administrative State,” by Jason Torchinsky and Dennis Polio; and “Independent Institutions and the Design of Fair Districting Maps” by Richard Pildes.

This episode features Michael T. Morley, Jason Torchinsky, Richard H. Pildes, Andrew Kloster, and Adam White.


Episode 7: The Administration of Democracy: Campaign Finance Regulation Today

On October 4, 2019, the Gray Center co-hosted “The Administration of Democracy⏤The George Mason Law Review’s Second Annual Symposium on Administrative Law.” The keynote conversation featured Robert Bauer, now at NYU Law School, and Donald McGahn, currently a Partner at Jones Day, discussing the current state of political campaigns and elections, and whether reforms are needed. This session was moderated by the Gray Center’s Executive Director, Adam White.


Episode 6: Why Does Congress Delegate Power?

On October 8, 2019, the Gray Center lost a great friend and mentor when Michael Uhlmann passed away at the age of 79. Professor Uhlmann served most recently as a Professor of Government at the Claremont Graduate University and Claremont McKenna College; previously he served in the federal government’s executive and legislative branches, taught at George Mason University, and contributed his efforts and experience to many other institutions. He was a friend and mentor to many, including the Gray Center’s Director, Adam White. We were grateful to him for serving on our Advisory Council, and we miss him greatly.

In his honor, we are releasing the audio from a 2019 conference at which he spoke on Congress and the Administrative State.


Episode 5: Improving Agency Cost-Benefit Analysis

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. The conference’s fourth and final panel session focused on improving agency cost-benefit analyses. Panelists discussed three new papers: Caroline Cecot and Robert Hahn’s paper on “Transparency in Agency Cost-Benefit Analysis”; Jerry Ellig and Richard Williams’s “David Versus Godzilla: Bigger Stones”; and William Yeatman’s paper, “Why Two Congressional OIRA Are Better Than One.”

This episode features Caroline Cecot, Richard Williams, Will Yeatman, Connor Raso, and Adam White.


Episode 4: Regulatory Budgets & Executive Order 13771

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. During the third panel at the event, speakers discussed the use of “regulatory budgets” in White House regulatory oversight, and Jim Tozzi presented a new paper on OIRA and regulatory budgets.

This episode features Jim Tozzi, Chris DeMuth, Richard Pierce, Anthony Campau, and Andrew Kloster.


Episode 3: Cost-Benefit Analysis in Court

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. The conference’s second panel session focused on the place of cost-benefit analysis in judicial review of agency action. We discussed two new papers: “Codifying the Cost-Benefit State,” by Brian Mannix and Bridget Dooling; and “The Ascendancy of the Cost-Benefit State,” by Paul Noe.

This episode features C. Boyden Gray, Bill Buzbee, Bridget Dooling, Paul Noe, and Kristin Hickman.


Episode 2: What Role Should OIRA Play?

On September 13, 2019, the Gray Center hosted a conference on The Future of White House Regulatory Oversight and Cost-Benefit Analysis. In the conference’s first panel session, which focused on OIRA, speakers discussed two new papers: Former OIRA Administrator Susan Dudley’s paper, titled “OIRA Past and Present,” and a paper by Rutgers University Professor Stuart Shapiro, titled “OIRA’s Dual Role and the Future of Cost Benefit Analysis.”

This episode features Susan Dudley, Stuart Shapiro, Chris DeMuth, Sally Katzen, and Adam White.


Episode 1: Introducing “Arbitrary & Capricious” 

The Gray Center’s Executive Director, Professor Adam White, introduces the podcast and offers a few thoughts on the Center’s work.