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Dear Friends,
A few days ago, I taped an episode of our “Gray Matters” podcast with Professors Sam Halabi and Kristen Osenga, two experts on intellectual property who recently wrote Gray Center Working Papers on regulatory issues related to vaccine development. (I hope you’ll read the papers — here and here.) As the conversation wound down, a question occurred to me: how might my guests’ expertise and focus on issues beyond the usual stuff of Administrative Law give them a better view, or at least a different view, of the administrative state?
Perhaps the question was on my mind because I recently read Judge Jed Rakoff’s new book, Why the Innocent Plead Guilty and the Guilty Go Free — And Other Paradoxes of Our Broken Legal System. It is a fascinating and challenging book, but given its focus on criminal prosecutions and incarceration I was surprised to reach the book’s last chapter and find … a discussion of Chevron deference. 
Noting that the SEC and other agencies often begin their enforcement process before the agency’s own adjudicators, Judge Rakoff contends that “the Supreme Court has greatly limited its effective review” of agency adjudications. “The overall effect” of Chevron, he writes, “is to deprive ordinary people of meaningful access to regular courts.”
While Chevron might seem out of place in a book on criminal justice, Judge Rakoff’s brief discussion of it was very much of a piece with his book’s broader argument: namely, that judges should be much less deferential to prosecutors, and much more actively aware of the ways in which the prosecutor’s power and discretion might have subtle but significant effects on the defendants’ and judges’ own actions.
Judge Rakoff’s outside perspective on administrative law was thought-provoking. And it is a reminder that perhaps we would all benefit from thinking more about what the criminal justice process and the administrative process, while different in so many ways, actually have in common.
Then again, some of the greatest scholars of public administration recognized this a long time ago. When Kenneth Culp Davis wasn’t writing his seminal articles and books on administrative law, he was writing his books on police discretion and on “discretionary justice” in general. And before James Q. Wilson wrote Bureaucracy, he wrote Varieties of Police Behavior and his landmark article on “broken windows” policing. 
Today there are scholars who do interesting and important work in both of these fields, such as Professors Rachel Barkow and Brenner Fissell. The rest of us who care about administrative law could learn much from their work. And from Davis and Wilson, too.

All the best,

Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
Center of Activity: Upcoming Events

Save the Date!

The Gray Center is excited to welcome you back for an in-person event in downtown D.C. on Friday, June, 11, 2021, co-hosted by the George Mason Law Review. Attendance will be limited and D.C.'s public health guidance for indoor events will be followed. Registration will open soon, so make sure you save the date for now. If you don't already receive our event invitation emails, subscribe below to get an email notification in your inbox once sign-ups are available.
"Gray Matters": Listen to Our Most Recent Podcast Episodes

In this episode, Bowdoin College’s Andrew Rudalevige and the Gray Center’s Adam White describe the processes of executive order 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.” You can listen to it here.  

Listen to the Gray Center's entire audio catalog here, as well as on iTunesSpotifyStitcher, and wherever else you listen to podcasts.
Working Papers: Read the Latest

This paper looks at the important considerations that the political branches should entertain when deciding whether to add more judges to federal circuit and federal district courts. Cass establishes the most important principles involved the rule of law, predictability, and constitutionality and finds that increasing the size of federal circuit courts would do a disservice to these values, and that only a handful of district courts would actually benefit from a modest expansion.

The following paper was workshopped at a Gray Center roundtable titled, “Administration in Crisis: Pandemics, Financial Crises, and Other Emergencies”

In this article, Jacob Gersen studies the institutional history and legal restrictions that shape how the government can manage scarcity during emergencies. The study relies on two historical periods of crisis in American history, World War I and World War II, and describes the divergent approaches undertaken by the US government in each of those emergencies.

The following paper was workshopped at a Gray Center roundtable titled, “Facts, Science, and Expertise in the Administrative State"

Courts are more highly deferential to agencies when conducting judicial review of agency actions that involve highly scientific and technical matters. However, Jonathan Adler argues that this “super deference” is inconsistent with actions that trigger heightened scrutiny, such as actions that infringe upon constitutional rights or create unconstitutional classifications, and argues for not applying super deference in these situations, with analysis on what consequences might follow such a move.

The following paper was workshopped at a Gray Center roundtable titled, “Administrative Law in the States: Laboratories of Democracy”

In response to a relative dearth in recent studies of state deference doctrines, Daniel Ortner conducted a 50-state survey to understand better how deference has been applied in state courts. He finds that some states have explicitly rejected deference, while other state courts have made incremental steps away from deference. He also discusses what state level deference cases might tell us about the future of the federal deference doctrine.
Now Published: See Where the Latest Gray Center Scholarship Has Appeared

The FDA’s Power Over Non-Therapeutic Uses of Drugs and Devices by Patricia J. Zettler, 78 Wash. & Lee L. Rev. 379 (2021)

The Private Delegation Doctrine by Paul J. Larkin, Jr., 73 Fla. L. Rev. 31 (2021)

Algorithmic Accountability in the Administrative State by David Freeman Engstrom and Daniel E. Ho, 37 Yale J. Reg. 800 (2020)

The Sandbox Paradox: Balancing the Need to Facilitate Innovation with the Risk of Regulatory Privilege by Brian R. Knight and Trace E. Mitchell, 72 S.C. L. Rev. 445 (2020)

Will the “Legal Singularity” Hollow Out Law’s Normative Core? By Robert F. Weber, 27 Mich. Tech. L. Rev. 97 (2020)

No Vacancy or Open for Business? Making Accommodations for Digital Platform Short-Term Rentals in Major American Municipalities by Braedon Sims and Jordan Carr Peterson, 43 U. Haw. L. Rev. 123 (2020) (Note: Full text available on SSRN.)

The Case Against Chevron Deference in Immigration Adjudication by Shoba Sivaprasad Wadhia and Christopher J. Walker, 70 Duke L.J. 1197 (2021)

The Gray Center's First
SSRN eJournal

This week, the Gray Center released its first SSRN Legal Scholarship Network eJournal, highlighting select articles from its Working Paper Series, which features new scholarship on the administrative state and administrative law from a wide variety of viewpoints.
Distinguished Work:
Updates on our Advisory Council, Affiliated Faculty,
and Distinguished Senior Fellows

  • This month, the Yale Journal on Regulation's Notice and Comment blog is running a symposium on Cass Sunstein and Adrian Vermeule's new book, Law and Leviathan: Redeeming the Administrative State. The symposium is organized by Gray Center Advisory Council Member Jeffrey Pojanowski. Other contributors include Gray Center Advisory Council Members Jonathan Adler and Emily Bremer (right), and Gray Center Affiliated Faculty Member Jennifer Mascott.

  • In The Washington Post, Gray Center Advisory Council Member Andrew Rudalevige explains that Pres. Biden may be getting rid of the various Authorizations for the Use of Military Force (AUMF) governing the war on terror.

  • Advisory Council Member David Schoenbrod co-authored a piece in The Hill criticizing Biden's plans on climate change. Read it here.

  • Gray Center Affiliated Faculty Member Mark J. Rozell also has a new piece in The Washington Post on whether Virginia Democrats misread their mandate. Find it here.
"Summary Judgment"
Past Gray Center Scholarship & Today's News

On Monday, April 5, the Supreme Court vacated an appeals court ruling that former President Donald J. Trump had violated the First Amendment by blocking people from his Twitter account. The case was dismissed as moot because Trump is no longer in office and Twitter has permanently banned him from its platform. However, as NPR reports, a concurrence in the ruling from Justice Clarence Thomas, which took aim at Section 230 of the Communications Decency Act, has drawn intense attention in technology circles. 
“We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms,” wrote Thomas. He added that social media companies are “sufficiently akin” to a common carrier, such as a public utility, and should “be regulated in this manner.” 

The concurrence was met with a mixed response. In a TIME magazine op-ed, David French criticized Thomas for opining on matters of public policy and breaking with decades of First Amendment precedent which protects corporate speech. In the American Compass, economist Marshall Auerback praised Thomas’ refusal to require a showing of market power before designating social media companies as common carriers. Additionally, take a look at this guide to conceptualizing the debate over Section 230 in Brookings’ Techstream blog. 
The Gray Center hosted a podcast on the Section 230 debates last year. Both guests had authored Gray Center working papers on the subject. 

  • In one, Enrique Armijo explains that “even if Section 230 were to be legislatively revised, serious constitutional problems would remain with respect to holding social media platforms liable, either civilly or criminally, for third-party user content.”

  • In the second, Matthew Feeney argues that allegations of anti-conservative bias, deep fakes, and extremist content don’t justify Section 230 reform. 
"Notice and Comment"
Things Worth Reading

Remembering Judge Stephen Williams: the Yale Journal on Regulation published a symposium issue on the late Judge Williams. In the fall, the Gray Center will also host a symposium conference in his honor; stay tuned for details.
“Ideology and Performance in Public Organizations”: In a new paper, scholars from the National Bureau of Economic Research examine “how ideological alignment between politicians and bureaucrats affects the personnel policies and performance of public organizations.”
“Why the Innocent Plead Guilty and the Guilty Go Free”: Judge Rakoff discussed his new book (mentioned earlier in this newsletter) with the Gray Center’s Adam White, in a webinar hosted by the American Enterprise Institute.

“I have been places and done things you simply would not believe”: Rest in peace, Michael Collins, who piloted Neil Armstrong and Buzz Aldrin to the Moon and back. He passed away on April 28. Two years ago he reflected on the Apollo 11 mission, and more, in an interview with TIME.
This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State