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Dear Friends,

How should regulators apply old laws to new technologies? That’s a question that I discussed earlier this month with FTC Commissioner Noah Phillips, in a live “webinar.” His agency, which usually finds itself criticized for regulating too much, now finds itself criticized for regulating too little, in terms of social media companies and other tech companies. I enjoyed the conversation and learned a lot from it; I hope our audience did, too.
 
As it happens, my conversation with Commissioner Phillips is the “keynote” to a series of conversations I’ve been recording recently on issues ranging from social media and federal regulators, to Airbnb and local regulators, to broader questions of regulation, technology, and innovation. They arose from a series of new Gray Center Working Papers that we had planned to present at a conference in March. When Covid-19 forced us to cancel that conference, we re-designed it as a series of podcast episodes.
 
The tech conversations, including my conversation with Commissioner Phillips, are available now, along with new episodes on a range of other topics. So if you haven’t already subscribed to our podcast, “Arbitrary and Capricious,” then please do—you can find us on all the usual podcast apps, and we archive the episodes on our web site, too. 
 
Meanwhile, the Gray Center’s other major initiative in August focused on agency “adjudication.” This has always been high on our radar; it was the subject of our first annual George Mason Law Review Symposium two years ago. (And here are the articles.) So we were honored to be invited by the Administrative Conference of the United States, the federal advisory board on reforming regulatory process, to co-host a series of live online conference panels focused on various aspects of agency adjudication—from technical details to the big constitutional picture. If you are interested in the issue but missed the live discussions, you can catch up on them here. 
 
This ACUS conferences certainly were well timed: on August 31 the White House’s Office of Information and Regulatory Affairs issued a major new memorandum to federal agencies on due process and fairness in adjudication.
 
Last, but certainly not least: The Gray Center recently debuted another major initiative, our “Policy Briefs” series. For years, we have focused primarily on the Working Papers Series for scholars to present drafts of major new law review articles. But sometimes an issue is best treated not with a long scholarly paper but a shorter, punchier policy essay on current events. And that is what our Policy Briefs will be: short essays, written by practitioners and scholars, focused on the issues of our day. Unlike the Working Papers, which are near-final drafts that the scholars release as they continue to refine their thoughts, the Policy Briefs will be much more polished. (Molly Doyle, our Associate Director for Communications, designed a very sharp format for them.)
 
And you can see for yourself. The series debuted with a paper by former OIRA Administrator Sally Katzen, on the state of federal civil service. We’ll soon release papers by Chris DeMuth, Richard Pierce, and others. 
 
Thanks, as always, for your encouragement, suggestions, and support.
 
All the best,

Adam White
Executive Director
The C. Boyden Gray Center for the Study of the Administrative State
In Memoriam
Just one more note:
 
The Gray Center joins the many friends and colleagues of Judge Stephen F. Williams, who mourn his passing. Judge Williams was an extraordinary judge: his thoughtful scholarship on regulatory policy and administrative law made him a natural fit for the D.C. Circuit, and throughout his three decades on the bench he produced a staggering array of thoughtful judicial opinions on constitutional and administrative law, along with scholarly articles on an array of subjects, and even two books on liberalism and reform in pre-Soviet Russia.
 
Tributes to his life and legacy have poured forth in the time since his passing, including remembrances by Michael Greve, Aaron Nielson, Peter Conti-Brown, the American Enterprise Institute, a group of his former clerks, and one of his last clerks. I offered a few reflections of my own in an American Enterprise Institute podcast.
 
Judge Williams was a familiar face in the Center’s programs—as recently as this spring, when he moderated a panel discussion at our February 6 conference, the last public event we held before Covid-19 arrived. 
 
In early June, as I began to plan an autumn roundtable on “Facts, Science, and Expertise in Administration,” I emailed him to invite him to contribute a short paper to the discussion. I wrote:
 
“… in planning this roundtable, I have been thinking that the discussion of ‘expertise’ in agencies would benefit immensely from reflections on judges’ own expertise, relative to that of the agencies. And on the subject of ‘judicial expertise’ and administration, you immediately came to my mind. So this is a long way of asking whether you would be interested in writing on this question of ‘judicial expertise’ — either a long article, or even just a short essay. We would be honored to include it in the roundtable …”
 
When I sent my email, I did not know that he already had been hospitalized for Covid-19. Come November, when we convene our roundtable, I’ll surely spend many moments wondering what Judge Williams would have told us about expertise and judgment. His absence will be palpable—at that roundtable, and in everything else we do. The Gray Center offers its deepest condolences to his family, his friends, his clerks, and all of those whose lives were touched by his kindness—and whose minds were stirred by his ideas.
Center of Activity: Upcoming Events

Save the Date for our Upcoming Virtual Events!

  • Wednesday, Oct. 21 - Webinar with Bloomberg Journalist Kimberly Strawbridge Robinson (for Scalia Law Students Only)

  • Friday, Oct. 23 - Supreme Court Preview Webinar

You can keep an eye on our events page and social media channels for registration for each event to go live, or feel free to sign up for our event invitations email list to be the first to know when registration opens.
Working Papers: Read the Latest

By Richard J. Pierce, Jr.
In this paper, Professor Pierce advocates for ending the pretense that the regulation of the financing of political campaigns is achievable under the current regulatory regime, which he proposes be replaced by a far simpler set of rules under which all candidates, parties and PACs disclose all major contributions. Additionally, the paper argues for ending the selection of candidates for Congress via party primaries, and also proposes eliminating the “Hastert rule,” a rule which limits the consideration of the full House of Representatives to bills which have the support from a majority of the Speaker’s party.

By Shoba Sivaprasad Wadhia and Christopher J. Walker
This paper proposes eliminating Chevron deference from the realm of immigration adjudication. The authors argue that this would be best achieved by reform efforts across all three branches of government, and that the result would be better use of agency expertise, an improved deliberative process, and more political accountability over this hot-button area of the law.
Now Streaming: Recent Event Videos

Catch up on video recordings of our latest events:

On Sept. 2, 2020, the Gray Center hosted a webinar featuring FTC Commissioner Noah Phillips to discuss the challenges of regulating modern-day tech.

In August 2020, the Gray Center co-hosted a symposium alongside the Administrative Conference of the United States and the Center for Progressive Reform. The symposium was composed of five panels, each focused on various aspects of agency adjudication.
"Arbitrary and Capricious": Listen to our Most Recent Podcast Episodes

Administrative law can be a complicated subject to teach. Two years ago, Ballotpedia created an Administrative State Project to serve as a public resource on administrative law, and today its encyclopedic website offers hundreds of pages of educational materials on the administrative state’s modern work and historical underpinnings. In this episode, Adam is joined by Christopher Nelson, who manages Ballotpedia’s Administrative State Project. Listen to the episode here.

The Federal Trade Commission is a century-old agency facing some of the most cutting-edge technologies and issues of our time. How should an agency apply old laws to new technologies? FTC Commissioner Noah Phillips joins Adam White for this conversation. Listen to their discussion here.

How can tech regulators best do their jobs in a way that promotes innovation and the public interest? In a pair of new Gray Center working papers, Gus Hurwitz (University of Nebraska) and Geoffrey Manne (International Center of Law & Economics) offer two new ways to think of the regulatory task: “Regulation as a Discovery Process,” in which the regulatory process is geared toward promoting the creation and spread of knowledge; and “Regulation as Partnership,” in which the regulators and the regulated see each other in less adversarial terms. Adam White interviews Hurwitz and Manne, along with American Action Forum's Jennifer Huddleston for a discussion on these proposed reforms. Listen here.

In a new Gray Center Working Paper, "Zoning for Disruption," Professor Jordan Carr Peterson of North Carolina State finds that Airbnb’s arrival in a city can trigger significant regulatory responses not spurred by less-famous short-term rental companies. To discuss his paper, and broader issues of regulation and short-term rentals, Adam White and Professor Peterson are joined by the University of Idaho’s Professor Stephen Miller and Airbnb’s former Head of Policy Strategy, David Owen. Take a listen here.

Enrique Armijo of Elon University and Matthew Feeney of the Cato Institute join Adam White to discuss the Gray Center Working Papers that they recently published on the Section 230 debates, and the broader technological and policy issues at stake. You can listen to the episode here.

Lawyer and author Philip Howard founded Common Good, a nonpartisan nonprofit organization, to call for fundamental reform of America's bureaucratic, legal, and political institutions. In the Gray Center's latest podcast, Howard expands upon Common Good's mission, arguing for the reestablishment of chains of accountability and the need to empower people with responsibility to deal sensibly with matters of governance. Listen to his discussion with Adam here.

Bridget Dooling of George Washington University's Regulatory Studies Center and Philip Wallach of the R Street Institute join Adam to assess the state of the Trump administration's regulatory or deregulatory agenda in its fourth year. Topics of discussion include the administration's response to the Covid-19 pandemic, the Congressional Review Act, and what we can expect to see in the next few months as the conclusion of President Trump's first term fast approaches. 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 iTunes, Spotify, Stitcher, and wherever else you listen to podcasts.
Staff Highlights

Conrad Meek - Conrad is the Associate Director for Academic Affairs at the Gray Center. Conrad earned his J.D. from Antonin Scalia Law School in 2020. He first joined the Gray Center in November 2018 as an Alexander Hamilton Student Fellow. During law school, he also served as the Senior Research Editor on the George Mason Law Review. Conrad is a 2015 graduate of Covenant College and received a B.A. in History. His pandemic pastimes have included constructing crossword puzzles, spending time with his cat, and watching movies with his wife, Megan. 
Now Published: See Where the Latest Gray Center Working Papers Have Appeared

Modernizing the Bank Charter by David Zaring, 61 Wm. & Mary L. Rev. 1397 (2020)

Delegation and Time by Jonathan H. Adler & Christopher J. Walker, 105 Iowa L. Rev 1931 (2020)

Distinguished Work: Updates on our Advisory Council, Affiliated Faculty, and Distinguished Senior Fellows

  • Melanie Marlowe (pictured right) of the Center for Strategic and International Studies, also a Gray Center Advisory Council Member, is a co-host on the national security podcast, "Net Assessment". The latest episode considers the role of ideology in American foreign policy.

  • Affiliated Faculty Member (and Dean of George Mason University's Schar School of Public Policy) Mark Rozell was on C-Span, discussing executive power and the Constitution with Professor John Yoo. Watch the video here.

  • Andrew Rudalevige, Bowdoin College Professor of Government and Gray Center Advisory Council Member, was recently interviewed by NPR’s Leila Fadel. In the interview, Professor Rudalevige gives his perspective and analysis on the four COVID-19 relief executive orders signed by President Trump in August. You can read or listen to the interview here.

  • A National Affairs essay by R. Shep Melnick, Gray Center Advisory Council Member, entitled "Desegregation, Then and Now," was highlighted by George Will in his column for The Washington Post last month. Both Melnick and Will open their respective pieces with a consideration of Kamala Harris and Joe Biden's clash on busing in the Democratic debates last summer.

  • In early July, Case Western Reserve Law Professor and Gray Center Advisory Council Member Jonathan Adler penned an op-ed in The New York Times arguing that Chief Justice John Roberts is an anti-disruption judicial minimalist. Take a look here. 

  • Paul Larkin, Jr., Rumpel Senior Legal Research Fellow at The Heritage Foundation and Gray Center Advisory Council Member, has a report out on the Framers' understanding of property and how that ought to inform the Supreme Court's jurisprudence. Find it here.
"Notice and Comment"
Things Worth Reading


  • Economics: George Mason University’s Mercatus Center published a new study by James Broughel and Robert Hahn, comparing various nations to see how economic regulation affects growth; they find the data supports the conclusion that economic regulation tends to reduce welfare in competitive markets. Meanwhile, at the Federal Reserve, Isabel Cairó and Jae Sim find that “the rise of market power of the firms in both product and labor markets over the last four decades” has major effects on financial stability and economic inequality.

  • History: In the Journal of Supreme Court History, Prof. Robert Post describes how Chief Justice Taft wrote his famous majority opinion in Myers v. United States, on presidential power to remove executive officers. This article, a fascinating review of Taft’s correspondence and other records, is available to Journal subscribers here, but a draft version is freely available on SSRN. (Adam White offers some thoughts on the story at the Yale Journal of Regulation’s blog).


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