The Podcast of the C. Boyden Gray Center for the Study of the Administrative State
Welcome to “Gray Matters,” 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.
In his confirmation hearing, Chief Justice John Roberts famously analogized his role to that of an umpire, “to call balls and strikes, and not to pitch or bat.” Dean Ronald Cass argues in a new paper that in three notable decisions of the U.S. Supreme Court—Kisor v. Wilkie, Department of Commerce v. New York, and Department of Homeland Security v. Regents of University of California—Roberts also seems to be concerned by the way the crowd will perceive the call. Cass explains that these decisions depart from prior law on judicial review and create additional discretion for the courts at the expense of the other branches.
The paper was part of a Gray Center roundtable entitled “Judicial Review after Kisor.” In today’s podcast, Dean Cass joins Gray Center Co-Executive Director Adam White to discuss all three decisions and more.
Cass’s paper, “The Umpire Strikes Back: Expanding Judicial Discretion for Review of Administration Actions,” is available at: https://administrativestate.gmu.edu/wp-content/uploads/sites/29/2021/02/Cass-the-Umpire-Strikes-Back.pdf
This episode features Ronald Cass and Adam White.
On June 11, 1946, President Truman signed the Administrative Procedure Act (APA) into law, and it was intended to be “a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal Government,” according to its lead sponsor in the Senate. If we were to redesign the APA for today’s version of the administrative state, what would it be? To mark the 75th anniversary of the APA, on June 11, 2021, the Gray Center hosted a conference gathering many of the George Mason Law Review Symposium Issue authors together at the Historic Decatur House in DC for an afternoon of conversations on this and related questions.
The first panel session, titled “Creation Stories: What Did the 79th Congress Mean to Accomplish?” focused on papers by four Symposium Issue authors: Michael S. Greve and Jeremy A. Rabkin of George Mason University’s Antonin Scalia Law School, Christopher J. Walker of the Ohio State University’s Moritz College of Law, and former ACUS Administrator, Paul R. Verkuil. The panel session was moderated by Adam White, Co-Executive Director of the Gray Center, who also gave welcoming remarks along with George Mason Law Review Symposium Editor, Carly Hviding. Links to the papers by this panel’s authors are available below, and the videos from the entire event as well as all Symposium Issue papers are available at https://administrativestate.gmu.edu/events/the-75th-anniversary-of-the-apa-the-george-mason-law-reviews-3rd-annual-symposium-on-administrative-law/.
This episode features Michael Greve, Carly Hviding, Jeremy Rabkin, Paul Verkuil, Christopher Walker, and Adam White.
“Do NEPA (the National Environmental Policy Act) and other permitting requirements doom green energy and infrastructure plans?” That was the title of a recent webinar, organized by the Law & Economics Center at George Mason University’s Antonin Scalia Law School. The Gray Center’s Adam White moderated a discussion with Mario Loyola (Competitive Enterprise Institute) and Andrew Rosenberg (Union of Concerned Scientists). Both have worked firsthand on these issues: Loyola at the Council on Environmental Quality, and Rosenberg at the National Oceanic and Atmospheric Administration.
This episode features Mario Loyola, Andrew Rosenberg, and Adam White.
For the last forty years, courts have been especially deferential to federal agencies’ claims of scientific expertise. And in the last year, we have seen the Supreme Court grapple repeatedly with questions of administrative decisions related to managing the Covid-19 pandemic.
How much deference should courts afford agencies on scientific and technical matters? This was among the subjects discussed in a recent Gray Center roundtable on “Facts, Science, and Expertise in the Administrative State.” The roundtable’s working papers are now on the Center’s web site, and in this podcast two of the authors, Jonathan Adler and Don Elliott, discuss their own papers on the “super-deference” doctrine of Baltimore Gas & Electric Co. v. NRDC. They’re joined by the Center’s Executive Director, Adam White.
This episode features Jonathan Adler, E. Donald Elliott, and Adam White.
The Paycheck Protection Program was the single largest component of the federal pandemic relief legislation passed in March of 2020. Since then, a debate has developed about the program’s speed-accuracy trade-off, exposing the challenges administrators face when they’re responsible for administering vague statutes in emergency circumstances with little or no information up front.
Prof. Susan Morse wrote on this subject as part of a Gray Center roundtable on administration in crisis. In this episode of the podcast, she joins Adam to discuss her paper and more.
This episode features Susan Morse and Adam White.
Amid the Covid-19 crisis, Operation Warp Speed helped to develop vaccines with astonishing speed. But even with a fast-tracked FDA process, there still remain significant questions about risk, liability, and intellectual property. These are the subjects of two new Gray Center working papers by Professors Sam Halabi of the University of Missouri and Professor Kristen Osenga of the University of Richmond. The papers were discussed at a roundtable last fall, and published as working papers this year. In this episode of the podcast, they join Adam to discuss their papers and what we’ve learned since the fall. (NOTE: Unfortunately, we encountered some audio difficulties during the recording).
This episode features Sam Halabi, Kristen Osenga, and Adam White.
Executive orders are not a new tool of presidential power — all presidents have used them, and some much more than others. But in recent decades they seem to have become a more significant and prominent aspect of American government. In today’s episode, Bowdoin College’s Andrew Rudalevige and the Gray Center’s Adam White describe the processes of E.O. development, with special focus on the Office of Management and Budget’s central role. It’s all the subject of Rudalevige’s new book, “By Executive Order: Bureaucratic Management and the Limits of Presidential Power.”
This episode features Andrew Rudalevige and Adam White.
At least five Supreme Court justices seem interested in reconsidering the current version of the “Nondelegation Doctrine.” And their recent judicial opinions have inspired waves of new scholarship for and against judicial reform. Last spring, the Gray Center invited scholars to workshop new papers on the nondelegation doctrine; now those articles are online in our Working Paper Series, and two of the authors—Kristin Hickman and Nicholas Parrillo—chat with Adam White about their papers and the broader nondelegation debates.
This episode features Kristin Hickman, Nicholas Parrillo, and Adam White.
The Biden Administration faces immensely consequential policy choices on questions of financial regulation—from the proper regulatory standards to apply to banks for the sake of safety, soundness, and systemic risk; to cryptocurrencies; to the use of financial regulatory agencies to drive policy on non-financial issues. And as the Gamestop/Robinhood saga highlighted, new technologies can radically complicate even old policy frameworks. How will the new administration and Congress confront these challenges?
On March 11, 2021, the Gray Center hosted an expert panel on “The Future of Financial Regulation in the Biden Administration,” to confront these issues and more. This webinar was the fifth installment of the Gray Center’s series, “The Administrative State in Transition.” It featured the following panel of experts: Peter Conti-Brown, of the Wharton School of the University of Pennsylvania and the Brookings Institution, Kathryn Judge of Columbia Law School, and Jennifer J. Schulp, of the Cato Institute’s Center for Monetary and Financial Alternatives. The conversation was moderated by the Gray Center’s Executive Director, Adam White.
This episode features Peter Conti-Brown, Kathryn Judge, Jennifer J. Schulp, and Adam White.
Throughout his presidential campaign, Joe Biden called for national reforms to police practices and civil rights. Immediately after the election, his transition team highlighted Racial Equity as one of its four policy priorities. And right after his inauguration, he signed a set of initial executive actions focused generally on discrimination. Yet at the same time, he has argued that the focus should be not on “defunding the police,” but rather on promoting accountability. With that in mind, what specific policies might the Biden Administration and Congress pursue in the months and years ahead? What reforms are in the federal government’s direct regulatory powers, and which will need to be pursued through federal spending or other powers? And what issues are committed to state and local governments?
To discuss these issues, on February 25, 2021, the Gray Center hosted the fourth event in its webinar series, “The Administrative State in Transition,” featuring the following panel of experts: Rachel Harmon of the University of Virginia School of Law, Gail Heriot of the University of San Diego School of Law, and Ronald S. Sullivan, Jr., of Harvard Law School. The conversation was moderated by the Gray Center’s Director, Adam White.
This episode features Rachel Harmon, Gail Heriot, Ronald S. Sullivan, Jr., and Adam White.
From George Washington’s administration onward, the federal government’s power over financial markets and banks has always occupied a nebulous corner of American constitutional government. Recently the Gray Center posted three new working papers exploring different aspects of financial and monetary regulation.
In this podcast, Adam White chats with two of the authors: Columbia Law School’s Lev Menand, on financial regulators’ power to “supervise” banks; and Wharton’s Peter Conti-Brown on “the problem of Federal Reserve governance.”
This episode features Peter Conti-Brown, Lev Menand, and Adam White.
“Tech policy” is a broad and nebulous label. But from antitrust to national security to social media moderation, recent years have been filled with difficult questions about federal law and policy, and myriad proposals for major new regulatory initiatives surrounding new technologies and big tech companies. Moreover, these debates scramble familiar partisan and ideological lines. What policies might the new Biden administration pursue — in legislation, and in regulation?
To discuss this topic, the Gray Center hosted a webinar on February 11, 2021, with a panel of leading experts, including Loully Saney of the Day One Project, Alec Stapp of the Progressive Policy Institute, and Ted Ullyot, former General Counsel of Facebook. The conversation was moderated by the Gray Center’s Director, Adam White. This was the third event in the Gray Center’s series, “The Administrative State in Transition.”
This episode features Loully Saney, Alec Stapp, Ted Ullyot, and Adam White.
Promptly after the election, President-elect Joe Biden’s official “transition” team announced that climate change would be one of the new administration’s top four policy priorities. The transition’s website listed a variety of familiar and new ways in which the Biden administration intends to grapple with this issue. And, of course, this is just one of several issues of energy and environmental policy that the new administration will be handling. What new legislative and regulatory initiatives should we expect? What challenges will they confront? What are their prospects for success?
To discuss these and other issues, the Gray Center hosted a webinar conversation with several experts, including Jonathan Adler of the Case Western Reserve University School of Law, Gene Grace of American Clean Power, and Lisa Heinzerling of the Georgetown University Law Center. The conversation was moderated by the Gray Center’s Director, Adam White. This was the second event in the Gray Center’s series, “The Administrative State in Transition.”
This episode features Jonathan Adler, Gene Grace, Lisa Heinzerling, and Adam White.
Over the last four years, the Trump administration continued the longstanding framework for OIRA regulatory oversight, but it also developed new oversight tools, such as the new regulatory budgeting framework of Executive Order 13771. How will the new Biden Administration structure its own frameworks for regulatory oversight? What old and new tools will it keep? And what new innovations might it deliver?
To discuss these and other issues, the Gray Center hosted a webinar conversation with several leading experts: Michael Livermore of the University of Virginia School of Law, Jennifer Nou of the University of Chicago Law School, and Stuart Shapiro of the Rutgers University Bloustein School of Planning and Public Policy. The conversation was moderated by the Gray Center’s Director, Adam White. This was the first event in the Gray Center’s 2021 virtual event series, “The Administrative State in Transition.”
This episode features Michael Livermore, Jennifer Nou, Stuart Shapiro, and Adam White.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
The Gray Center’s Executive Director, Professor Adam White, introduces the podcast and offers a few thoughts on the Center’s work.