Dear Friends,
This month I have three pieces of news about the Gray Center team: past, present, and future.
Let’s start with some great news about a former colleague:
Daniel Shapiro, one of the Center’s first student fellows, just accepted an offer to clerk for Justice Thomas. I can’t say enough good things about Daniel. After working with then-Professor Rao at the Center (and interning with her in the White House), he had two federal clerkships before starting at Consovoy McCarthy. The Scalia Law community is proud of him—especially his friends at the Gray Center.
Now, some news about one of our current colleagues—great news for her, though bittersweet for us:
Anyone who’s spent any time at Gray Center events over the last few years knows that Leah Davenport holds everything together. Everything we’ve done—from student programs, to research roundtables, to conferences on campus and in DC—was a success because Leah dedicated her talents and enthusiasm to them. When Neomi handed the Center off to me in 2017, her advice was blunt: Leah was key to the Center’s success. If anything, that was an understatement! Since those early days, when she was the Center’s only full-time team member, to the last few years when she helped me build our programs and the team itself, I was always amazed by her work, and grateful for it. Now she’s starting the next chapter in her career: she and her husband have been building not just a business of their own, but also a web site promoting everything that’s new and exciting in Arlington. Good luck, Leah — and thanks for everything.
Finally, some big news for the future:
Even in this strange year of COVID-19, the Gray Center has continued to grow its programs significantly: more research roundtables, webinars, podcasts, and soon we’ll be hosting big conferences again, too. Luckily, our team continues to grow. And now we are hiring for a very important position: Director of Operations.
We need someone to help coordinate and direct all aspects of the Center’s work: our roundtables, conferences, webinars, podcasts, working papers, newsletters, and everything else. I need someone who’s well-organized and collegial, and a little obsessed with administrative law.
If you know someone who fits the bill, then please send them our job posting. And if you’re interested yourself, then please apply!
All the best,
Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
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Center of Activity: Upcoming Events
On Thursday, March 11 from 1:00 to 2:30 p.m. ET, we're hosting a webinar on Financial Regulation in the Biden Administration. Registration will open next week, so keep an eye on our website and social media for that announcement. We hope you'll sign up and join us!
To make sure you're notified once registration opens, you can also sign up below to receive email invitations to all our events.
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Working Papers: Read the Latest
The following papers were workshopped at a Gray Center roundtable titled, “Public Health: Regulation, Innovation, and Preparation”
To help meet the pressing, global problem of COVID-19 vaccine product liability, Sam Halabi suggests combining three existing frameworks: first, require that existing no-fault regimes incorporate COVID-19 vaccine related claims; second, further extend the WHO’s existing small-scale insurance programs; and third, model the claims system off of past international mass claims systems such as the compensation tools used after the Deep Horizon oil spill or the Boeing 737 mass casualty events.
In this article, Richard Williams and Kathryn Ghani consider the far-reaching societal impacts of pandemic-related lockdown mandates and argue that the best way to ensure that the costs of lockdown do not exceed the benefits of lockdown is to practice health localism, under which a locality can tailor policies to best fit the needs and risks of its citizens.
After discussing the interconnected roles that vaccines and intellectual property play in responding to a pandemic, Kristen Osenga discusses four adjustments that could make future pandemic-related vaccine efforts more fruitful.
The following papers were workshopped at a Gray Center roundtable titled, “Administration in Crisis: Pandemics, Financial Crises, and Other Emergencies”
In this article, authors Alejandro Camacho and Robert Glicksman analyze governmental authority to respond to a crisis through three different dimensions: centralized versus decentralized, overlapping versus distinct, and coordinated versus independent. Through this framework, the article gives policy insights into the failures of the Trump administration’s planning for and response to the COVID-19 pandemic and into broader lessons about government organization.
In this paper, Daniel Epstein seeks to empirically test the theory proposed by Adrian Vermeule that, in response to 9/11, lower federal courts would extend greater deference to the federal government in matters that touch on national security emergencies. Using a novel data set of cases that involve judicial review of executive branch actions premised on national security authority, Epstein finds that 9/11 did not have a significant impact on deference. He then explores the implications of this finding.
Susan Morse directs attention to the role that the Treasury Department and the Small Business Administration played in the execution of the Paycheck Protection Program in the spring of 2020. While the program was characterized by a loose regulatory approach at the beginning, media scrutiny caused the federal government to take more interest in who received funds later in the program. Morse argues that Treasury and SBA could have acted sooner with helpful administrative guidance that would have ensured that the funds were received by the firms most in need.
The following paper was workshopped at a Gray Center roundtable titled, “The Federal Reserve, Financial Regulation and the Administrative State”
In this article, Lev Menand establishes what is at stake with the current trend of desupervision of the financial sector by banking agencies. While supervision of banks was historically justified as an outsourcing of administrative authority to help create an elastic money supply, the move away from supervision, which Menand argues is a function of the divergence between the original rationale for supervision and the current landscape of the banking sector, poses a threat to the public-private monetary system that has governed the U.S. economy for over a century.
The following papers were workshopped at a Gray Center roundtable titled, “Facts, Science, and Expertise in the Administrative State”
Donald Elliott argues here for the end of “no look” deference found in the Baltimore Gas & Electric case, for three principal reasons. First, “no look” deference discounts scientific opinions and replaces it with a crude proxy, the opinion of government experts. Second, it incentivizes agencies to dress up their decisions with scientific considerations, even when the agency may have reached their decision on other grounds. Third, Baltimore Gas allows agencies deference even when they disagree with the opinions of their own scientists.
Throughout the COVID-19 pandemic, much has been made of the idea that government officials should “lead with science.” In this article, Anthony Mills steps back to consider what is required to implement public policy that is based on scientific knowledge. He argues that the process is far from straightforward, and necessarily must involve deliberation and judgment – including “non-expert judgment.”
The following paper was workshopped at a Gray Center roundtable titled, “Judicial Review After Kisor and the Census Case”
In this article, Ronald Cass considers three recent, marquee Supreme Court cases: Kisor, the Census Case (Department of Commerce v. New York) and the DACA case (Department of Homeland Security v. Regents of University of California). He argues that all three cases give federal judges more options to pursue judicial review and expand the discretion judges have – giving judges more authority to either require or forego exacting detail from agencies.
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Now Streaming: Recent Event Videos
Catch up by watching the video of our latest event:
To address difficult questions about big tech, social media content moderation, and more, on February 11, 2021, the Gray Center hosted a webinar to discuss what tech-related policies the new Biden Administration might pursue, in legislation and in regulation. This virtual event gathered a panel of leading experts: Loully Saney, Policy & Strategic Communications Advisor at the Day One Project, Alec Stapp, Director of Technology Policy at the Progressive Policy Institute, and Ted Ullyot, Mediator, Consultant, and former General Counsel of Facebook. Watch the event video here, and listen to the event as a podcast here.
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Staff Highlights
A Big Thank You to Leah Davenport - As noted above in this issue's Director's Letter, Leah Davenport has been an integral part of building the Gray Center into what it is today, and is now moving on. Our staff members have described her as the "tenacious, hard working, driving force behind our well-oiled machine, who gracefully balances all her tasks while joking around and with a smile on her face." She will be missed, but we wish her the very best and know she's on to great things!
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Distinguished Work:
Updates on our Advisory Council, Affiliated Faculty, and Distinguished Senior Fellows
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Gray Center Affiliated Faculty Member J.W. Verret (right) offers his views on the Robinhood/GameStop affair in a new piece in The Hill.
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In The Wall Street Journal, Gray Center Advisory Council Member and Distinguished Senior Fellow C. Boyden Gray argues against the plan to institute electric car quotas in California. Find it here.
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Also in the Journal, Gray Center Advisory Council Member and Distinguished Senior Fellow Sally Katzen co-authors a piece with the George Washington University Regulatory Studies Center's Susan Dudley urging the Biden administration to embrace one of Trump's "midnight" actions - namely, a Justice Department memorandum to the White House counsel that clears a path for improved decision-making by independent regulatory commissions.
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Eugene Volokh recently introduced the founding of a new, faculty-edited law journal in his blog - that is, The Journal of Free Speech Law. Volokh will serve as Executive Editor while Gray Center Affiliated Faculty Member Judge Douglas H. Ginsburg and Gray Center Founder Judge Neomi Rao will both serve on the editorial board.
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"Summary Judgment"
Past Gray Center Scholarship & Today's News
On Feb. 19, 2021, the United States officially rejoined the Paris Agreement on climate change, having left in November of 2020. The decision to reverse course was one of President Biden’s top priorities. Special envoy for climate John Kerry stressed that there is still work to be done however, explaining that “if every country delivered [on the Paris Agreement], we’d still see a warming planet Earth.”
Since taking office, Biden has made a number of other important decisions in the area of energy and environmental policy. In one executive order, Biden revoked the March 2019 permit for the Keystone XL Pipeline and created an interagency working group to publish the social costs of carbon and other greenhouse gases. Take a look at the administration’s other environmental actions on this Washington Post tracker.
Additionally, Biden now has a chance to appoint new judges to one of the most important federal courts for environmental policy. Read Ellen Gilmer’s report in Bloomberg Law on vacancies in the U.S. Court of Appeals for the D.C. Circuit.
In the last year, the Gray Center has hosted a number of events on environmental law and policy:
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Last month, Gray Center Executive Director Adam White was joined by Jonathan Adler, Gene Grace, and Lisa Heinzerling to discuss Biden’s policy priorities in the area. Find it here.
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In September, the Center hosted a discussion with E. Donald Elliott and Michael Gerrard on the National Environmental Policy Act and the impacts it has had in the last 50 years. Find the full video here.
In 2016, the Gray Center hosted a conference on “Environmental Law in the Administrative State.” Take a look at some of the papers below:
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In one, James W. Coleman argues that it's not helpful for environmental assessments of transport infrastructure to focus on how these transport projects might affect upstream and downstream markets.
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In another, Daniel A. Lyons considers the question of energy federalism. Read it here.
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In a third, Jonathan Adler and Nathaniel Stewart raise questions about the constitutionality of the Clean Air Act’s highway fund sanctions.
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"Notice and Comment"
Things Worth Reading
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“George Shultz’s Statesmanship Began with Good Government at Home”: This month America lost one of the 20th Century’s greatest statesmen, George Shultz. Most famous for his service as Secretary of State, Mr. Shultz previously served in three other cabinet positions: Secretary of Labor, Director of the Office of Management and Budget, and Secretary of the Treasury. As OMB Director, Mr. Shultz helped to lay the groundwork for White House regulatory oversight. Adam White highlights this part of his legacy, and its connection to his worldview in the State Department, in a blog post for the Yale Journal on Regulation.
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The Constitution and Public Sector Unions: In USA Today, Philip Howard argues that the U.S. Constitution’s “Guarantee Clause,” which requires the United States to guarantee every state a republican form of government, should inform our understanding of modern public sector unions, from police to teachers.
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“The Problem with Legislating from the White House”: AEI’s Philip Wallach worries that congressmen might like executive power as much as presidents do.
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America the Beautiful: Whether you like the Interior Department’s regulations or not, you’ll have to admit that it has the administrative state’s best Instagram account.
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This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State
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3301 Fairfax Drive
Arlington, VA 22201
703.993.8708
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