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Dear friends,
Many thanks to all who joined us—both in person and online—for our memorial symposium in honor of the late Judge Stephen Williams. And thanks especially to our speakers, who offered such insightful and often moving reflections on the judge’s life and work. You can find their papers and the event’s videos online.
This month we’ll consider the work of another jurist: Justice Clarence Thomas, who this year celebrates his thirtieth year on the Supreme Court. On October 21, we’ll co-host a gathering of judges and lawyers, including many of Justice Thomas’s former clerks, to discuss many aspects of his three decades of service on the Court. On our website you can register to attend in person or watch online. Many thanks to the Heritage Foundation, who is hosting this event with us.
Last week, the Center hosted a conference on “Presidential Administration in a Polarized Era,” on October 1 in Washington. Months ago, we organized a series of roundtable discussions for scholars who were writing new papers on themes of presidential administration and executive power; now we are bringing them back together to present those papers, on panels with other expert commentators. And, of course, you can find the papers on our website; videos of the panel discussions will be posted soon, too.
The event also featured a panel with Sai Prakash and John Yoo, who discussed their recent books on the constitutional presidency with Julian Davis Mortenson, whose own book on the constitutional presidency is forthcoming. Our keynote guest was Judge Neomi Rao, the Gray Center’s founding director, who offered reflections on her time in the executive and judicial branches.
This is a busy time for the Center, with much more to announce in the weeks and months ahead. But it’s also a season of change, as two of our Associate Directors start the next chapters in their careers. In recent days, Conrad Meek became a lawyer in the office of Senator Lindsey Graham, and Jeff Zymeri started his graduate studies in Classics at the University of Cambridge. We’re so grateful for all their contributions to the Center’s work, and so excited to see what they’ll do next.
All the best,

Adam White & Jenn Mascott
Co-Executive Directors
The C. Boyden Gray Center for the Study of the Administrative State
Center of Activity:
Upcoming Events

Please Join Us for our Oct. 21 Symposium on Justice Thomas's Thirty-Year Legacy on the Court

The symposium will take place Thursday, October 21, 2021 at the Heritage Foundation in Washington, DC. You can view the event agenda with additional details.

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Sign up to attend virtually here >>

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"Gray Matters":
Listen to our Most Recent
Podcast Episodes

This summer, Professor Jennifer Mascott joined the Gray Center as its new Co-Executive Director. In this episode of the podcast, Jenn joins Adam to discuss her current research interests, her recent experience in the Justice Department, and her plans for Gray Center programs — beginning with an October 21 conference on Justice Thomas’s thirty-year legacy on the Court. Listen to the full episode here.

Listen to the Gray Center's entire audio catalog here, as well as on iTunesSpotifyStitcher, and wherever else you listen to podcasts.
Now Streaming:
Recent Event Videos

Catch up by watching the videos from our latest event:

When Judge Stephen Williams died last year, he left behind family, friends, colleagues, protégés, and admirers who a year later still feel his absence dearly. He also left behind an enormous legacy, in his invaluable contributions to constitutional law, administrative law, regulatory policy, and liberal democracy itself. His judicial opinions, articles, and books will be discussed for many years to come. And to continue that discussion, it was our pleasure and honor to host an event in his memory: a conference for new papers written for a symposium on Judge Williams’s legacy in law and liberty, held on September 17, 2021.

Panel 1 focused on "Judge Williams on Administrative Law and Regulatory Policy" - Watch it here >>

Panel 2 looked at "Judge Williams on the American Constitution and Liberal Democracy" - Watch it here >>

Keynote Remarks were given by Judge Williams's colleague, the Honorable Douglas H. Ginsburg, Senior Judge, U.S. Court of Appeals for the D.C. Circuit. Watch the keynote remarks here >>

Working Papers Series:
Read the Latest

The following papers were discussed at the Gray Center Symposium in Honor of the late Judge Stephen F. Williams

In this essay, Ambassador C. Boyden Gray reflects upon Judge Williams’s application of the nondelegation doctrine in American Trucking and how the late judge viewed the doctrine’s ongoing relevance to separation of powers issues. He also discusses the ongoing influence of American Trucking on the law today.

Professor Greve discusses the contributions Judge Williams made to the theory and practice of federalism, and how the judge’s views are hard to classify within the ongoing debates over federalism. Greve surveys Judge Williams’s writings and opinions on the subject and demonstrates how the judge often departed from conservative and libertarian orthodoxy in interesting ways.

Professor Huffman writes on Judge Williams’s extensive environmental law jurisprudence and discusses the impact his opinions had on environmental law and how Judge Williams approached adjacent issues such as law and economics, standing, and separation of powers issues.

In his essay, Professor Merrill writes on Judge Williams’s fidelity to the law and his steadfast commitment to faithful interpretation and application of the Administrative Procedure Act. Professor Merrill goes on to discuss Chevron and Judge Williams’s pragmatic approach to resolving open legal questions.

Professor Sachs reflects in his essay on Judge Williams’s view of the U.S. Constitution and the “model of intellectually serious adherence to law” he imparted to the lawyers and judges with whom he worked. Sachs describes Williams’s approach and style as a judge, and writes on how the judge was not adverse to “high-quality doctrinal analysis” that informed much of his decision making.

In his essay, Nathaniel Zelinsky – a recent clerk for Judge Williams – discusses the premium the judge placed on intellectual curiosity, and how that natural inquisitiveness informed his views on liberalism. Zelinsky goes on to discuss two books written by Judge Williams and unpacks what these arguments have to say about the future of liberalism, or illiberalism, in America.
Team Highlights

Professor Jennifer Mascott Testifies Before Senate Judiciary Committee

On September 29, the Gray Center’s Co-Executive Director, Professor Jennifer Mascott (left), testified before the Senate Judiciary Committee to discuss issues related to federal jurisdiction and the Supreme Court’s non-merits orders docket. You can access the video and her prepared statement here along with those of the other witnesses.
Adam White to Join Virtual Discussion on "Countering Capture: A Political Theory of Corporate Criminal Liability"
On Monday, October 25, Gray Center Co-Executive Director Adam White (right) will participate in a webinar on "Countering Capture: A Political Theory of Corporate Criminal Liability" hosted by the Hoover Institution's Working Group on Regulation and Rule of Law. This discussion will feature remarks from Jennifer Arlen of the New York University School of Law, whose scholarship focuses on corporate criminal enforcement, medical malpractice, and experimental law and economics. You can register here to watch the webinar.
Distinguished Work:
Updates on our
Advisory Council,
Affiliated Faculty, &
Distinguished Senior Fellows

  • In a new episode of Net Assessment, Gray Center Advisory Council Member Melanie Marlowe discusses whether there is a "Biden doctrine" and if so, what exactly it is.

  • Gray Center Affiliated Faculty Member Mark J. Rozell's new column in The Washington Post is on the tightening of the Virginia gubernatorial race.

  • In The Volokh Conspiracy, Jonathan Adler considers the legal issues raised by the new OSHA emergency standard requiring large employers to test or vaccinate their employees.
"Summary Judgment"
Past Gray Center Scholarship
& Today's News

On Sep. 23, 2021, news broke that President Biden will nominate Cornell Law professor Saule T. Omarova to lead the Office of the Comptroller of the Currency. Omarova, a fierce critic of big banks, will oversee an agency charged with regulating national banks to make sure they follow federal rules. While progressives like Sen. Elizabeth Warren lauded the pick as "tremendous news", Omarova has faced pushback from others. "Our financial regulators must focus on pro-growth policies that foster innovation to build a robust and inclusive economic recovery, rather than Democrats’ obsession with vague social objectives," responded Rep. Patrick McHenry, top Republican on the House Financial Services Committee.
The decision comes as Jerome Powell's future in charge of the Federal Reserve remains unclear. At a recent press conference, Powell dodged the question of how much he would defer to a new vice chair for supervision. Powell's answer opens the door to a package deal Biden could push through, in which the Republican remains chair while current Fed Governor Lael Brainard, who is favored by progressives, takes over as the Fed's regulation czar.

As the administration continues to round out agency appointments, a newer regulatory debate has taken particular prominence. Treasury Department officials are racing to put together an oversight framework for cryptocurrency. Chief among their concerns are the potential risks posed to both consumers and financial markets. The Treasury Department's initial target is to regulate stablecoin, a fast-growing product which is only lightly regulated through a patchwork of state rules, and serves as a bridge between cryptocurrency markets and the traditional economy. Cryptocurrency industry executives have argued against tight new regulations, explaining that the U.S. will drive innovation abroad, risk the dollar’s primacy, and kill the promise of digital finance.

The Gray Center has hosted multiple conferences and roundtables on financial regulation over the years. Here is a selection of papers to read:
  • In an early paper, M. Todd Henderson and James C. Spindler considered an intermediate form of financial regulation - the “regulatory veto" - which allows regulators to intervene to reduce bank risk taking after banks have started their activities but before the losses have occurred.
  • In another, David Zaring looked at proposals to modernize bank charters. 
  • In a third, Peter Conti-Brown addressed problems facing the Federal Reserve and argued for reforms across three divides: cultural, regulatory, and legislative. 
  • Finally, read J.W. Verret's case for privately enforceable statutory constraints on Federal Reserve emergency lending.
"Notice and Comment"
Things Worth Reading

“‘Strategic tension’: EPA plowing ahead on power plant rules.” E&E News reports on the EPA’s plans to issue new climate regulations. (Subscribers only.)
“The Impending Judicial Regulation of Artificial Intelligence in the Administrative State.” For the Notre Dame Law Review’s “Reflections,” Aram Gavoor considers how the courts might promote transparency in agencies’ use of A.I. technologies.

Intelligence and the Next Pandemic. Former FDA Commissioner Scott Gottlieb argues in the Washington Post that intelligence agencies should play a more central role in guarding against pandemics. Gottlieb’s book, Uncontrolled Spreadwas published this month.
“What Do Political Appointees Do?” AEI’s Yuval Levin uses Gottlieb’s book as an opportunity to reflect upon the relationship between presidents, agencies, and the agencies’ presidentially appointed leadership.
“Regulating Elections in the United States.” The Penn Program on Regulation’s Regulatory Review published a series of essays on the administration of election laws. Readers of this email might recall that the Gray Center’s 2019 Law Review Symposium was focused on “The Administration of Democracy.”  
“Three Views of the Administrative State: Lessons from Collins and Yellen.” Looking to the Supreme Court’s two latest decisions on independent agencies, Professor Aaron Nielson considers the justices’ opinions, and their premises and implications, for the newest Cato Supreme Court Review.
This newsletter is edited by Molly Doyle,
Associate Director for Communications for the C. Boyden Gray Center for the Study of the Administrative State