Welcome to the Gray Center’s Working Paper Series for new scholarship on administrative law and the administrative state. Most of these papers were workshopped at the Center’s research roundtables and presented at the Center’s public policy conferences. The Gray Center is an open forum for vibrant debate, so the Center takes no institutional positions on the issues discussed in the papers that it publishes or the conferences that it organizes. All views expressed in Working Papers and other materials reflect only the views of the authors.
Autumn 2020
- The Case Against Chevron Deference in Immigration Adjudication
Shoba Sivaprasad Wadhia, Associate Dean for Diversity, Equity, and Inclusion and Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law in University Park, and Christopher J. Walker, John W. Bricker Professor of Law, The Ohio State University Moritz College of Law
the federal reserve, financial regulation and the administrative state
- The Problem of Federal Reserve Governance: Law, Politics, and History
Peter Conti-Brown, Assistant Professor, the Wharton School of the University of Pennsylvania; Visiting Professor, Columbia Law School (Fall 2020); Nonresident Fellow in Economic Studies, Brookings Institution - Meetings, Comments, and the Distributive Politics of Rulemaking
Brian Libgober, Postdoctoral Associate and Lecturer, Yale University
Delegations and Nondelegation After Gundy
- Delegation at the Founding
Julian Davis Mortenson, Professor of Law, University of Michigan, and Nicholas Bagley, Professor of Law, University of Michigan - The Minor Questions Doctrine
Aaron L. Nielson, Professor, J. Reuben Clark Law School, Brigham Young University - A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s
Nicholas R. Parrillo, Professor of Law, Yale Law School, and Professor of History, Yale University - Nondelegation at the Founding
Ilan Wurman, Associate Professor, Sandra Day O’Connor College of Law, Arizona State University - Rational Non-Delegation
John Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law; Visiting Scholar, American Enterprise Institute; and Visiting Fellow, Hoover Institution
First Branch, Second Thoughts – What is Congress’s Proper Role in the Administrative State?
- Congress and the Stability of the Cost-Benefit Analysis Consensus
Caroline Cecot, Assistant Professor of Law, Antonin Scalia Law School, George Mason University - The Congressional Bureaucracy
Jesse M. Cross, Assistant Professor, University of South Carolina School of Law, and Abbe R. Gluck, Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School - Transformation of Congressional Lawmaking by the Clean Air Act Amendments of 1970 and Its Effects
Frank T. Manheim, Affiliate Professor, Schar School of Policy and Government, George Mason University - Extremists and Participation in Congressional Oversight Hearings
Nicholas G. Napolio, Assistant Professor of Public Policy, University of Southern California, and Janna King Rezaee, Graduate Student, University of Southern California - The Decision of 1946: The Legislative Reorganization Act and the Administrative Procedure Act
Joseph Postell, Associate Professor of Politics, Hillsdale College - The Revolution That Wasn’t: Conservatives Against Congress, 1981-2018
Philip A. Wallach, Resident Scholar, American Enterprise Institute
August 31, 2020
Should Internet Platform Companies Be Regulated⏤And If So, How?
- Reasonableness as Censorship: Algorithmic Content Moderation, The First Amendment, and Section 230 Reform
Enrique Armijo, Associate Dean for Academic Affairs and Professor, Elon University School of Law, and Affiliated Fellow, Yale Law School Information Society Project - Defending the Indispensable: Allegations of Anti-Conservative Bias, Deep Fakes, and Extremist Content Don’t Justify Section 230 Reform
Matthew Feeney, Director, Cato Institute Project on Emerging Technologies - Regulation as Partnership
Justin (Gus) Hurwitz, Associate Professor of Law, and Co-Director of Space, Cyber, and Telecom Law Program, University of Nebraska-Lincoln College of Law - Regulating into Uncertainty: Regulation as a Discovery Process
Justin (Gus) Hurwitz, Associate Professor of Law, and Co-Director of Space, Cyber, and Telecom Law Program, University of Nebraska-Lincoln College of Law, and Geoffrey A. Manne, President and Founder, International Center for Law & Economics - Zoning for Disruption: Local Exposure to Nontraditional Tourist Activity and the Rise of Regulatory Burdens on Digital Platform Short-Term Rentals in Major U.S. Cities
Jordan Carr Peterson, Assistant Professor of Political Science, Texas Christian University
August 10, 2020
- A Realistic Version of Campaign Finance Reform and Two Essential Steps Toward a Return to Effective Governance
Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The George Washington University Law School
March 25, 2020
- Why We Need Federal Administrative Courts
Michael S. Greve, Professor of Law, Antonin Scalia Law School, George Mason University
February 6, 2020
Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government
- Regulating Agencies: Using Regulatory Instruments as a Pathway to Improve Benefit-Cost Analysis
Christopher Carrigan, Associate Professor and MPA Program Director, The Trachtenberg School, and Co-Director, GW Regulatory Studies Center, George Washington University; Mark Febrizio, Policy Analyst, George Washington University Regulatory Studies Center; and Stuart Shapiro, Associate Dean of Faculty, Edward J. Bloustein School of Planning and Public Policy, Rutgers University - Restoring Accountability to the Executive Branch
Philip K. Howard, Senior Counsel, Covington & Burling LLP - Agency Failure and Individual Accountability
Brian Libgober, Postdoctoral Associate and Lecturer, Yale University - Forthcoming, CSAS Working Paper 20-08
Jennifer Nou, Professor of Law, University of Chicago Law School - From Merit to Expertise and Back: The Evolution of the U.S. Civil Service System
Joseph Postell, Assistant Professor of Political Science, University of Colorado at Colorado Springs - Central Clearance as Presidential Management
Andrew Rudalevige, Thomas Brackett Reed Professor of Government, Bowdoin College - Judicial Administration
Bijal Shah, Associate Professor of Law, Sandra Day O’Connor College of Law, Arizona State University - Presidential Administration, the Appointment of ALJS and the Future of For Cause Protection
Paul R. Verkuil, Senior Fellow and Former Chairman, Administrative Conference of the United States; President Emeritus, The College of William & Mary; and Distinguished Senior Fellow, The C. Boyden Gray Center for the Study of the Administrative State
November 15, 2019
Technology, Innovation, and Regulation
- Common Carriage and Section 230
Adam Candeub, Professor of Law, and Director of the Intellectual Property, Information, & Communications Law Program, Michigan State University College of Law - Algorithmic Accountability in the Administrative State
David Freeman Engstrom, Professor of Law and Associate Dean for Strategic Initiatives, and Bernard D. Bergreen Faculty Scholar, Stanford Law School; and Daniel E. Ho, William Benjamin Scott and Luna M. Scott Professor of Law, Professor of Political Science, and Senior Fellow at Stanford Institute for Economic Policy Research, Stanford University - Disruptive Deference for Disruptive Technology
Jennifer Huddleston, Research Fellow, Mercatus Center, George Mason University - The Sandbox Paradox
Brian Knight, Director of Innovation and Governance, and Senior Research Fellow, Mercatus Center, George Mason University, and Trace Mitchell, Research Assistant, Mercatus Center, George Mason University - Tales of Woe: How Dysfunctional Regulation Has Decimated Entire Sectors of Biotechnology
Henry I. Miller, Senior Fellow, Pacific Research Institute - Will the “Legal Singularity” Hollow Out Law’s Normative Core?
Robert F. Weber, Associate Professor of Law, Georgia State University College of Law
October 25, 2019
The Administration of Immigration
- 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
Julie Axelrod, Chief Litigation Counsel, Center for Immigration Studies - Silence and the Second Wall, Ming Hsu Chen, Associate Professor of Law and Faculty-Director, Immigration Law and Policy Society, University of Colorado Boulder, Colorado Law School, and Zachary R. New, Joseph & Hall P.C.
- E-Verify: Mining Government Databases to Deter Employment of Unauthorized Aliens, William W. Chip, Member, Board of Directors, Center for Immigration Studies
- The Forgotten FISA Court: Exploring the Inactivity of the ATRC, Aram A. Gavoor, Visiting Professor of Law, The George Washington University Law School, and Timothy Belsan
- Chevron‘s Asylum: Re-Assessing Deference in Refugee Cases, Michael Kagan, Joyce Mack Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law
- “Crimes Involving Moral Turpitude”: The Puzzling and Persistent (and Constitutional) Immigration Law Doctrine, Craig S. Lerner, Professor of Law, Antonin Scalia Law School, George Mason University
- Litigating Citizenship, Cassandra Burke Robertson, John Deaver Drinko – BakerHostetler Professor of Law, and Director, Center for Professional Ethics, Case Western Reserve University School of Law; and Irina D. Manta, Visiting Professor at the St. John’s University School of Law, and Professor of Law and Founding, Director of the Center for Intellectual Property Law at the Maurice A. Deane School of Law at Hofstra University
- Recalibrating Judicial Review in Immigration Adjudication, Christopher Walker, Associate Professor of Law, The Ohio State University, Moritz College of Law, and Director, The Moritz Washington, D.C. Summer Program
September 13, 2019
The Future of White House Regulatory Oversight and Cost-Benefit Analysis
- Transparency in Agency Cost-Benefit Analysis
Caroline Cecot, Assistant Professor of Law, Antonin Scalia Law School, George Mason University; and Robert W. Hahn, Senior Fellow, Technology Policy Institute, Visiting Professor, Smith School, and University of Oxford, and Senior Policy Fellow, Georgetown Center for Business and Public Policy - OIRA Past and Future
Susan Dudley, Director, George Washington University Regulatory Studies Center, and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University - David versus Godzilla: Bigger Stones
Jerry Ellig, Research Professor, Regulatory Studies Center, The George Washington University, and Richard Williams, Writer and Senior Affiliated Scholar, Mercatus Center, George Mason University and Affiliated Scholar, Utah State Center for Growth and Opportunity - Codifying the Cost-Benefit State
Brian F. Mannix, Research Professor, GW Regulatory Studies Center, and Bridget C.E. Dooling, Research Professor, George Washington University Regulatory Studies Center - The Ascendancy of the Cost-Benefit State?
Paul R. Noe, Vice President of Public Policy, American Forest & Paper Association, and John D. Graham, Professor, the Paul H. O’Neill School of Public and Environmental Affairs, Indiana University - OIRA’s Dual Role and the Future of Cost-Benefit Analysis
Stuart Shapiro, Associate Dean of Faculty, Edward J. Bloustein School of Planning and Public Policy, Rutgers University
Published in the Environmental Law Reporter here. - OIRA: Past, Present and Future
Jim Tozzi, Managing Director, Center for Regulatory Effectiveness - Why Two Congressional OIRAs Are Better Than One
William Yeatman, Research Fellow, Cato Institute
May 22, 2019
Who Manages the Managers? A One-Year Lookback at President Trump’s Civil Service Reforms
- Jimmy Carter and Civil Service Reform
Stuart E. Eizenstat, Former President Carter’s Chief Domestic Policy Advisor and Director of the White House Domestic Policy Staff
May 2, 2019
The Constitution’s First Branch⏤Rediscovering the Legislative Power
- Delegation and Time
Jonathan H. Adler, Director, Center for Business Law and Regulation and Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law; and Christopher J. Walker, Associate Professor of Law, The Ohio State University, Moritz College of Law, and Director, The Moritz Washington, D.C. Summer Program
March 22, 2019
Religion and the Administrative State
- A Perfect Storm: Religion, Sex, and Administrative Law
Helen M. Alvaré, Professor of Law, Antonin Scalia Law School, George Mason University - The Sickness Unto Death of the Freedom of Speech
Marc O. DeGirolami, Professor of Law, St. John’s University School of Law; and Associate Director, Center for Law and Religion - Adjunct Faculty Unionization and Religiously Affiliated Universities
Michael P. Moreland, University Professor of Law and Religion, Charles Widger School of Law, Villanova University; and Director, Eleanor H. McCullen Center for Law, Religion and Public Policy - Masterpiece Cakeshop and the Future of Religious Freedom
Mark Movsesian, Frederick A. Whitney Professor of Contract Law, St. John’s University School of Law; and Director, Center for Law and Religion - Administrative Power and Religious Liberty at the Supreme Court
Mark L. Rienzi, Professor of Law, Columbus School of Law, The Catholic University of America
February 22, 2019
Congress and the Administrative State: Delegation, Nondelegation, and Un-Delegation
- Dimensions of Delegation: Constitutional Limits on the Administrative State
Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science; and Director, Penn Program on Regulation, University of Pennsylvania Law School - Nondelegation and Criminal Law
Brenner M. Fissell, Associate Professor of Law, Maurice A. Deane School of Law, Hofstra University - The Major Questions Doctrine Outside Chevron‘s Domain
Adam R. F. Gustafson, Partner, Boyden Gray & Associates - Regrounding the Private Delegation Doctrine
Paul J. Larkin, Jr., The John, Barbara, & Victoria Rumpel Senior Legal Research Fellow, The Heritage Foundation - Early Customs Laws and Delegation
Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason University - The Legislative Politics of Legislative Delegation
Joseph Postell, Assistant Professor of Political Science, University of Colorado at Colorado Springs - Consent of the Governed: An Underenforced Constitutional Norm
David S. Schoenbrod, Trustee Professor of Law, New York Law School
December 7, 2018
“New Normals?” The Trump Administration, the Courts, and Administrative Law
- Nationwide Injunctions’ Governance Problems: Forum-Shopping, Politicizing Courts, and Eroding Constitutional Structure
The Honorable Ronald A. Cass, Dean Emeritus, Boston University School of Law; and President, Cass & Associates, PC - The Administrative Law of Regulatory Slop and Strategy
Robert L. Glicksman, J. B. and Maurice C. Shapiro Professor of Environmental Law, The George Washington University Law School; and Emily Hammond, Glen Earl Weston Research Professor, The George Washington University Law School - Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis
Randy J. Kozel, Associate Dean for Faculty Development; and Diane and M.O. Miller II Research Professor of Law, Notre Dame Law School - Civil Servant Disobedience
Jennifer Nou, Professor of Law, The University of Chicago Law School - How Should the U.S. Public Law System React to President Trump?
Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The George Washington University Law School
October 24, 2018
Permits, Licenses and the Administrative State
- Marketable Permits in New Contexts: Have We Learned the Right Lessons from History?
Jason A. Schwartz, Legal Director, Institute for Policy Integrity; and Adjunct Professor and Research Scholar, New York University School of Law - Pipelines & Power-lines: Building the Energy Transport Future
James W. Coleman, Assistant Professor of Law, Dedman School of Law, Southern Methodist University - The Bank Charter and Its Would-Be Modernizers
David Zaring, Associate Professor of Legal Studies & Business Ethics, Wharton School of Business, University of Pennsylvania - Non-Therapeutic Uses and the FDA
Patricia J. Zettler, Associate Professor of Law, Georgia State University College of Law
January 26, 2018
Free Speech and the Administrative State
- Antidiscrimination Laws, the First Amendment, and the Administrative State
David Bernstein, Professor of Law, Antonin Scalia Law School, George Mason University - Telemarketing, Technology and the Regulation of Private Speech
Justin (Gus) Hurwitz, Assistant Professor of Law, and Co-Director of Space, Cyber, and Telecom Law Program, Nebraska College of Law - Due Process, Free Expression, and the Administrative State
Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law - What Cheap Speech Has Done- The Transformation of Libel and Privacy Law
Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
December 6, 2017
Beyond Deference, Emerging Issues in Judicial Review of Agency Action
- His Master’s Voice: Statutory Rulemaking Considerations and Judicial Review of Regulatory Impact Analysis
Jerry Ellig, Senior Research Fellow, Mercatus Center at George Mason University and Chief Economist, Federal Communications Commission; and Reeve T. Bull, Research Chief, Administrative Conference of the United States - Pursuing Pragmatic Finality in Agency Action
Kristin Hickman, Harlan Albert Rogers Professor of Law, University of Minnesota Law School, and Associate Director, Corporate Institute; and Mark Thomson, Associate, Crowell & Moring LLP - How Agencies Choose Whether to Enforce the Law: A Preliminary Investigation
Aaron L. Nielson, Associate Professor of Law, Brigham Young University Law School
- Negotiating the Federal Government’s Compliance with Court Orders: An Exploratory Discussion
Nicholas R. Parrillo, Professor of Law, Yale Law School - Neoclassical Administrative Law
Jeffrey Pojanowksi, Professor of Law, Notre Dame Law School
November 9, 2017
Perspectives on the PTAB: The New Role of the Administrative State in the Innovation Economy
- The Exceptionalism Norm in Administrative Adjudication
Emily S. Bremer, Associate Professor of Law, University of Notre Dame Law School - Exceptional, After All and After Oil States: Judicial Review and the Patent System
Michael S. Greve, Professor of Law, Antonin Scalia Law School, George Mason University - Appointments and Illegal Adjudication: The AIA Through a Constitutional Lens
Gary Lawson, Philip S. Beck Professor of Law, Boston University School of Law - Disguised Patent Policymaking
Saurabh Vishnubhakat, Associate Professor of Law, Texas A&M University School of Law - The New World of Agency Adjudication
Christopher J. Walker, Associate Professor of Law, Moritz College of Law, The Ohio State University; and Melissa F. Wasserman, Charles Tilford McCormick Professor of Law, The University of Texas at Austin School of Law
April 21, 2017
Rethinking Due Process
- Due Process and Delegation
Ronald A. Cass, President, Cass & Associates, PC - Slip Slidin’ Away
William Funk, Lewis & Clark Distinguished Professor of Law, Lewis & Clark Law School - Administrative Evasion of Procedural Rights
Philip Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School - Take the Fifth…Please! The Original Irrelevance of the Fifth Amendment Due Process of Law Clause
Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law - Sticky Regulations
Aaron L. Nielson, Associate Professor of Law, Brigham Young University Law School
December 9, 2016
Financial Regulation: Political, Administrative, and Constitutional Accountability
- Taking Systemic Risk Seriously in Financial Regulation
M. Todd Henderson, The University of Chicago Law School - Too Big for Administrative Law? FSOC Designations and the Fog of “Systemic Risk”
Adam J. White, The Hoover Institution - The Dealmaking State- Executive Power In The Trump Administration
Steven Davidoff Solomon, University of California, Berkeley School of Law - Regulation: Political, Administrative, and Constitutional Accountability
Geoffrey Parsons Miller, New York University School of Law - Dual Non-Banking System for Fintech
J.W. Verret, Antonin Scalia Law School, George Mason University
September 16, 2016
Environmental Law in the Administrative State
- Standing After Scalia
Stephen Vladeck, University of Texas, School of Law - Environmental Review of Pipelines, Energy Transport, & Global Energy Markets
James W. Coleman, Southern Methodist University Dedman School of Law - Protecting States in the Brave New World of Energy Federalism
Daniel Lyons, Boston College Law School - Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism, and Conditional Spending after NFIB v. Sebelius
Jonathan Adler, Case Western Reserve University School of Law; and Nathaniel Stewart, Visiting Fellow, Buckeye Institute for Public Policy - Safety Valve – The Resurgent “Major Questions” Doctrine
Nathan Richardson, University of South Carolina School of Law - Ghost Rules
Lincoln Davies, S.J. Quinney College of Law, University of Utah; and Amy Wildermuth, S.J. Quinney College of Law, University of Utah
June 2, 2016
Rethinking Judicial Deference
- Marbury v. Madison and the Concept of Judicial Deference
Aditya Bamzai - The Origins of Judicial Deference to Executive Interpretation
Aditya Bamzai - Agencies as Adversaries
Daniel A. Farber & Anne Joseph O’Connell - Beyond Seminole Rock
Aaron L. Nielson - In the Wake of Chevron’s Retreat
Catherine M. Sharkey - Legislating in the Shadows
Christopher J. Walker