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 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.