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I hope you’re enjoying your summer. Here at the Gray Center, the team has been hard at work on ways to adapt our programming to socially-distanced times, bringing you the best possible information and events in the year ahead.

A few weeks ago, we hosted a virtual "research roundtable" to discuss a few new working papers on the nondelegation doctrine. (Originally scheduled as an in-person springtime event, the Covid-19 outbreak spurred us to turn the program into a virtual format.) Those papers won't be published for awhile, but the conversation pleasantly reminded me of how much work the Center already has done to encourage scholarship and debate on the nondelegation doctrine. Time and again, participants referred back to papers that the Center previously supported and workshopped, including Professor Cary Coglianese's "Dimensions of Delegation" (U. Penn Law Rev., 2019), and "Delegation and Time" (Iowa Law Rev., forthcoming) by Professors Jonathan Adler and Chris Walker.

The Adler-Walker paper gave rise to an entire symposium of its own this spring in The Reg Review, a terrific site published by our friends at the Penn Program on Regulation (directed, in fact, by Prof. Coglianese). Contributors to that symposium included Richard PierceJoseph Postell, and other thoughtful scholars of modern administration. I highly recommend that you give it a look.

While we’re on the topic, here are the other nondelegation papers that the Center has helped to incubate, in addition to the aforementioned Coglianese and Adler/Walker papers. (The original working paper versions are available on our site; in this list I'll link to final published versions, where available.)

The papers from our spring/summer roundtable on nondelegation should appear on our web site's Working Papers Series in the autumn, and because an in-person conference is probably impossible, we plan instead to bring you discussions with authors and other commenters through our podcast or in another format—stay tuned.

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 - Sept. 2 Tech Policy Webinar with FTC Commissioner Noah Phillips

The Gray Center will host FTC Commissioner Noah Phillips on September 2 for a virtual discussion on the latest tech policy issues. Registration details will be available soon. If you'd like to be notified once registration opens, make sure to sign up here for our "Event Invitations" email list if you haven't already.

August Federal Agency Adjudication Symposium

During the month of August, the Gray Center is co-hosting an online symposium on Federal Agency Adjudication in partnership with the Administrative Conference of the United States and the Center for Progressive Reform. This virtual symposium will consist of four webinar panel discussions:

  • August 6, 2020 from 2:00 to 3:30 pm EDT - "Appointment and Removal of Federal Agency Adjudicators"

  • August 11, 2020 from 2:00 to 3:30 pm EDT - "Managing Federal Agency Adjudication Programs"

  • August 21, 2020 from 2:00 to 3:30 pm EDT - "Procedures of Federal Agency Adjudication"

  • August 27, 2020 from 2:00 to 3:30 pm EDT - "Alternatives to Traditional Agency Adjudication"

We invite you to join us for this event series. You can find more event details and register for each panel session here.
"Arbitrary and Capricious": Listen to our Most Recent Podcast Episodes

The Supreme Court's latest term ended with two decisions involving executive privilege. Though the words do not appear in the Constitution, some form of presidential secrecy has been asserted by every president from George Washington onward. To discuss this timely and timeless issue, Adam is joined by Dean Mark Rozell of GMU's Schar School of Policy and Government in an episode which can be found here

Adam Thierer of GMU's Mercatus Center joins the podcast to discuss his scholarship as well as his most recent book: "Evasive Entrepreneurs and the Future of Governance." Thierer dives into the growing phenomenon of technological civil disobedience and the "evasive entrepreneurs" who are changing the world by challenging "the permission society". According to Thierer, it's a phenomenon that ought to be welcomed. Listen to the podcast here

On a July 6 teleforum sponsored by the Federalist Society, Gray Center Executive Director Adam White interviewed Professor Richard Epstein, who has served as a keynote speaker for two Gray Center conferences, on his new book: "The Dubious Morality of Modern Administrative Law." Going back to first principles, Epstein not only offers a robust critique of modern administrative law but also considers how the administrative state can be rolled back in a coherent way. Take a listen here

We've also published all of our recent conference panel discussions as podcast episodes so you can easily catch up on our latest events. Listen to the Gray Center's entire audio catalog here, as well as on iTunesSpotifyStitcher, and wherever else you listen to podcasts.
Staff Highlights

Jeff Zymeri - Introducing Jeff Zymeri! Jeff (right) is the Associate Director for Policy and Practice at the Gray Center. He joined the Gray Center in June 2020, having previously gained experience in a number of positions in public service and law. Jeff is a 2020 graduate of Princeton University, where he earned an A.B. in Classics and certificates in German and Medieval Studies. In his free time, Jeff enjoys language learning, reading creative nonfiction, and supporting Chelsea F.C.
Now Published: See Where the Latest Gray Center Working Papers Have Appeared

From “Perspectives on the PTAB: The New Role of the Administrative State in the Innovation Economy” - Nov. 9, 2017:
Disguised Patent Policymaking by Saurabh Vishnubhakat, 76 Wash. & Lee L. Rev. 1667 (2019)

The New World of Agency Adjudication by Christopher J. Walker & Melissa F. Wasserman, 107 Calif. L. Rev. 141 (2019)

Exceptional, After All and After Oil States: Judicial Review and the Patent System by Michael S. Greve, 26 B.U. J. Sci. & Tech. L. 101 (2020)

The Exceptionalism Norm in Administrative Adjudication by Emily S. Bremer, 2019 Wis. L. Rev. 1351
From Conferences to the Courts

As the Supreme Court grapples with doctrines of "deference," one of the most significant and influential works of recent scholarship is "The Origins of Judicial Deference to Executive Interpretation," by Aditya Bamzai. Justice Gorsuch cited Professor Bamzai last year, in his Kisor v. Wilkie concurrence, and this year Justice Thomas returned to the article in a February opinion, dissenting from the Court's denial of certiorari in Baldwin v. United States.

In Baldwin, the Court was asked to overturn the 2005 Brand X precedent, which directs courts to give Chevron deference to an agency's new interpretation of a statute even if courts had previously affirmed a different interpretation by the agency. Justice Thomas himself had written Brand X, but he now believes that decision, and Chevron deference itself, is inconsistent with “over 100 years of judicial decisions.” In support of that argument, Justice Thomas repeatedly cited Professor Bamzai’s paper, which lays out the history of judicial deference to executive interpretations in the 18th and 19th centuries and finds that the review conducted by those courts bears little resemblance to Chevron.

You can read Professor Bamzai's paper here; it was a subject of the Gray Center's first conference, in 2016. 
Distinguished Work: Updates on our Advisory Council and Distinguished Senior Fellows

  • Regulations finalized in the next few months could be nullified by Congress in the first months of 2021, depending on the election results. This New York Times's report on the Congressional Review Act quotes Sally Katzen (right), a Gray Center Distinguished Senior Fellow and Advisory Council Member.

  • In the Wall Street Journal, Distinguished Senior Fellow and Advisory Council Member C. Boyden Gray argued that financial institutions' announced positions on energy investment raise antitrust questions. Larry Fink, chairman and CEO of BlackRock, replied on CNBC's "Squawk Box" program.

  • Writing in The Wall Street Journal, the Hudson Institute's Christopher DeMuth, a Gray Center Distinguished Senior Fellow and Advisory Council Member, explains that unlike other national emergencies, the COVID-19 pandemic has precipitated a federal response that is bucking the trend. Read the full story here.

  • Bowdoin College Professor of Government Andrew Rudalevige continues to contribute to The Washington Post's Monkey Cage. His most recent analysis is on the Supreme Court's decision in the DACA case. Find it here.

  • In The Regulatory Review, former chairman of the Administrative Conference of the United States Paul Verkuil, Distinguished Senior Fellow and Advisory Council Member, asks why the Supreme Court has taken contrasting approaches to the arbitral and administrative regimes. Read more here.

  • Two of our Advisory Council Members published in The Hill in February. New York Law School Professor David Schoenbrod argued that the "high crime of Congress" is framing legislation "to maximize credit and minimize blame rather than maximize the benefit to constituents". New York University Professor Catherine Sharkey co-authored a piece exploring the use of artificial intelligence tools by agencies.

  • Finally, Boston College Professor of American Politics R. Shep Melnick, a member of our advisory council, authored a report for the Brookings Institution on the Department of Education's final title IX rules on sexual misconduct. Take a look here.
"Notice and Comment"
Things Worth Reading

  • NIH and the Importance of Basic Science: At the R Street Institute, Tony Mills hosted a fascinating discussion on the government's history of supporting basic scientific research. (See also Mills's recent article in The New Atlantis, arguing that "centralization created a single point of failure in our Covid-19 response.")

This newsletter is edited by Molly Doyle,
Communications Assistant Director for the C. Boyden Gray Center for the Study of the Administrative State