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The last few months of social distance (and a few cancelled conferences) have reminded me how important it is for organizations like ours to stay in touch with the communities we’re serving. So this is the first edition of a now-monthly email newsletter from the C. Boyden Gray Center for the Study of the Administrative State.
Each month, we’ll send out information on  upcoming events , links to newly posted  Gray Center Working Papers , updates regarding older programs and papers, and other news from our community of scholars and students. And an introductory note from me — hopefully not too long.
Like everything else in our lives, the Covid-19 outbreak radically upended our spring plans. In March, Justice Gorsuch was scheduled to deliver our first annual Gray Lecture on the Administrative State; we’ll let you know when the event is rescheduled. Our spring conference on the regulation of tech companies was cancelled; we’re going to translate the panels into a series of podcast episodes. Our spring “research roundtable” workshops—on the nondelegation doctrine and on financial regulation—went “virtual.” Like all of you, we rolled with the punches, and to be honest I’m proud of how eagerly our participating scholars threw themselves into the virtual programs, enabling us to support vibrant research and debate even without meeting in person. And the experience taught us a lot about how the Center can encourage scholarship and debate even when we can’t meet in-person.
Now we’re focused on the year ahead. In April,  I announced our overarching strategy for 2020–2021 : for a year when in-person events will be hard to plan in advance, we are redoubling our focus on helping to foster scholarly research and debate, with at least eight research roundtables instead of our usual five. Here is our tentative list of roundtable subjects—beginning with two discussions focused on lessons learned from the coronavirus outbreak and policy response:

As we increase our focus on scholarship, we’re temporarily decreasing our focus on in-person events. We’ll have fewer conferences, but more discussions through podcasts, webinars, and other media that you can watch or hear at your own convenience.
Finally, as the Center’s work grows, so does our team. After Deputy Director Andrew Kloster left to take on a new role in government, we hired two Associate Directors: Conrad Meek is our Associate Director for Academic Affairs, and Jeff Zymeri is our Associate Director for Policy and Practice. You’ll learn more about them, and other members of our team, in future issues of this newsletter.
OK, that turned out to be more than I expected to write. I'd better stop, so that you can move on to all of the information we’ve collected below, edited by the Center’s Assistant Director for Communications, Molly Doyle. I promise that future “Director’s Letters” won’t be as verbose.
All the best,

Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
Working Papers: Read the Latest

To cure the constitutional deficiencies he sees in the "appellate review" model of agency decision making, and to further protect individual rights, Professor Greve proposes a system similar to the German administrative court system, which has established fully independent and fully constitutional administrative courts.

The following papers were workshopped at a previous Gray Center roundtable focused on the topic, “Should Internet Platform Companies Be Regulated – And If So, How?”

Professor Armijo explores why efforts to hold platforms liable for third-party user content would likely fail under First Amendment analysis.

Section 230 is weathering attacks from the right, alleging anti-conservative bias, and from the left, asserting the proliferation of extremism. Regardless of their origin, calls to reform Section 230 would ultimately result in fewer and less free online venues for speech.

Regulation as Partnership by Justin (Gus) Hurwitz
Drawing on the emerging scholarship on public-private partnerships and on lessons evident in AT&T’s relationship with regulators throughout the 20th century, this paper proposes a partnership model that could be applied to the regulatory scheme governing the tech industry.

With the proliferation of Airbnb and VRBO causing many major U.S. cities to rethink municipal zoning regulations, this paper uses empirical data to show that high ratios of local Airbnb activity are the most consistent indicator of increased regulations on digital-platform short term rentals.

The following papers were presented at the Gray Center's Public Policy Conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government," which took place February 6, 2020.

This paper compares benefit-cost analysis with performance standards, concluding that the systematic analysis of benefit-cost analysis closely mirrors agencies’ use of management-based regulations, and arguing that this conclusion should inform how benefit-cost analysis requirements are created and employed.

This paper examines the way executive accountability has been steadily eroded through legislative actions (principally the Civil Service Reform Act of 1978) and judicial actions (precedents set in Due Process clause cases involving federal employment decisions), resulting in an unresponsive and unaccountable executive branch.

Agency disestablishment appears to be a powerful tool that Congress can employ to combat capture by special interests. However, as this paper demonstrates using OPM employment records, disestablishment does not tend to cause employees of disestablished agencies to have less favorable career trajectories.

Merit was first enshrined in the civil service in the 1870s and the Pendleton Act in 1883. This paper looks at civil service reform since that time, which has oscillated between an emphasis on merit, primarily seeking to root out the patronage system that was introduced in the 1820s and 1830s, and an emphasis on expertise, a broader and more progressive-led movement focused on populating the government with experts.

Observing that [t]he executive branch is a ‘they,’ not an ‘it,’” this paper describes the various ways in which central clearance is a powerful tool that the president can use to effectively manage the multi-faceted and sprawling executive branch.

Judicial Administration by Bijal Shah
Opponents of Chevron see judicial engagement on federal statutory issues as an essential way of pushing back against the executive branch legislating. However, this paper posits that were the courts to give in to the impulse to take the “decider” role in administrative law cases, the federal judiciary would be just as much in violation of separation of powers as opponents of Chevron allege the administrative state is now.

This paper explores recent decisions and actions that have put on full display the tension between the independence of ALJs and the president’s ability to manage the administrative state.
"Arbitrary and Capricious": Listen to our Most Recent Podcast Episodes

Our latest podcast episode, a recording of a live webinar examining the economic and legal arguments for and against COVID-19-related business liability reform, featured comments from our Executive Director, Adam White, and other expert speakers. The event was co-sponsored by the Gray Center and the Law and Economics Center at Antonin Scalia Law School. Listen to the podcast episode here .

In May, Notre Dame Law Professor Jeffrey Pojanowski sat down with Adam to discuss an article in an earlier issue of the  Harvard Law Review . Amidst much scholarly debate surrounding the Constitution and the administrative state, Professor Pojanowski decided to formulate a new approach,  terming  it “neoclassical administrative law.” Adam and Professor Pojanowski discussed this new school of thought and the conversation it has sparked in an episode which can be found  here .

In March, University of Chicago Law School Professor William Baude joined us to discuss his lead  article  in the March issue of the  Harvard Law Review.  In it, Professor Baude posits that we ought to look to the kind of power a tribunal has been vested with and what it is trying to do with that power in order to explain why we have accepted certain forms of adjudication outside Article III. Take a listen  here .

In February, Professor Nicholas Bagley unpacked a forthcoming  Columbia Law Review   article  he co-authored with fellow Michigan Law Professor Julian Davis Mortensen. In it, the professors challenged calls for a reinvigorated “non-delegation doctrine,” arguing that the doctrine was not part of the original constitutional understanding. Listen to the podcast discussion with Professor Bagley  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. L isten to the Gray Center's entire audio catalog  here , as well as on  iTunes Spotify Stitcher , and  wherever else you listen to podcasts .
Staff Highlights

Tyler Carter - Get to know Tyler! Tyler Carter (right) is the Gray Center's Program Assistant and plays a significant role in executing the Gray Center's events and operations. Prior to joining the Gray Center, Tyler worked as an Office Coordinator at George Washington University, where she helped plan student-focused events in Housing and Residence Life. Tyler is a graduate of Towson University in Towson, Maryland where she earned her B.S. in Public Health and Health Care Management.

Daniel Shapiro - A former Student Fellow for the Gray Center, Daniel clerked for Judge E. Grady Jolly on the U.S. Court of Appeals for the Fifth Circuit in Jackson, Mississippi after he graduated from Scalia Law School. He currently clerks for Judge Neomi Rao on the U.S. Court of Appeals for the D.C. Circuit. After his clerkship, he will participate in the Claremont Institute's 2020 John Marshall Fellowship. 
Now Published: See Where the Latest Gray Center-Incubated Scholarship Has Appeared

From “Beyond Deference: Emerging Issues in Judicial Review of Agency Action” – Dec. 6, 2017:

Neoclassical Administrative Law by Jeffrey A. Pojanowksi, 133 Harv. L. Rev. 852 (2020)

From “Permits, Licenses and the Administrative State” – Oct. 24, 2018:
Pipelines & Power-Lines: Building the Energy Transport Future by James W. Coleman, 80 Ohio St. L.J. 263 (2019)

From “‘New Normals?’ The Trump Administration, the Courts, and Administrative Law – Dec. 7, 2018:

From “Congress and the Administrative State: Delegation, Nondelegation, and Un-Delegation” – Feb. 22, 2019:
Early Customs Laws and Delegation by Jennifer Mascott, 87 Geo. Wash. L. Rev. 1388 (2019)
When Agencies Make Criminal Law by Brenner M. Fissell, 10 U.C. Irvine L. Rev. 1388 (2019)

Dimensions of Delegation by Cary Coglianese, 167 U. Pa. L. Rev. 1849 (2019)

Consent of the Governed: A Constitutional Norm that the Court Should Substantially Enforce by David Schoenbrod, 43 Harv. J.L. & Pub. Pol’y 213 (2020)

From “Religion and the Administrative State” – March 22, 2019:
Masterpiece Cakeshop and the Future of Religious Freedom by Mark L. Movsesian, 42. Harv. J.L. & Pub. Pol’y 711 (2019)

The Sickness unto Death of the First Amendment by Marc. O. DeGirolami, 42 Harv. J.L. & Pub. Pol’y 750 (2019)

From “The Future of White House Regulatory Oversight and Cost-Benefit Analysis” – Sept. 13, 2019:

The Ascendancy of the Cost-Benefit State? by Paul Noe and John D. Graham, 5 Admin L. Rev. Accord 85 (2020)

OIRA’s Dual Role and the Future of Cost-Benefit Analysis by Stuart Shapiro, 50 Envtl. L. Rep. 10385 (2020)

Cato Institute, Policy Analysis No. 888 (2020)

From “The Administration of Immigration” – Oct. 25, 2019:

Silence and the Second Wall by Ming H. Chen and Zachary New,
28 S. Cal. Interdisc. L.J. 549 (2019)

The Forgotten FISA Court: Exploring the Inactivity of the ATRC by Aram A. Gavoor and Timothy M. Belsan, 81 Ohio St. L.J.139 (2020)

Litigating Citizenship by Cassandra Burke Robertson and Irina D. Manta, 73 Vand. L. Rev. 757 (2020)
Advisory Council Updates

Professor Joseph Postell , a member of the Gray Center’s advisory council and a frequent contributor to our roundtables and conferences, recently published two new articles. In The Nondelegation Doctrine After  Gundy ( NYU Journal of Law & Liberty ), he offers a “social compact theory” for the nondelegation doctrine and reviews how states have analyzed these issues. And in The Misunderstood Thomas Cooley: Regulation and Natural Rights from the Founding to the ICC ( Georgetown Journal of Law & Public Policy), he considers the legacy of one of the 19 th  Century’s leading libertarian legal minds.
"Notice and Comment"
Things Worth Reading

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