Harvard JLPP Publishes Gray Center "Administrative Law in the States" Symposium

Dear Friends,

For years, the Gray Center has partnered with law reviews for special symposium issues, such as the George Mason Law Review symposium for the Administrative Procedure Act’s 75th anniversary. In the last year, we significantly expanded this part of the Gray Center’s work, partnering with several law journals for major symposium projects.

Now that those symposia are being published, we’d like you to know about them. So in the weeks ahead, you’ll receive a few emails like this, with links to the articles and any events or podcasts we did for them.

We’re beginning with a very special symposium of essays by state supreme court justices and the Sixth Circuit’s Chief Judge Jeffrey Sutton, on administrative law in the states, published just days ago in the Harvard Journal of Law & Public Policy.

We’re grateful to each of the judges who wrote for this symposium, and to the JLPP’s editors for their excellent work in publishing the symposium. Thanks also to the Harvard Federalist Society for hosting an event for the symposium in January, and to Judge Thomas Griffith for moderating that discussion.

The Gray Center has been proud to support other great work on state administrative law, especially recent developments in state deference and nondelegation doctrines; we’ll list those articles at the end.

All the best,

Adam White

Co-Executive Director

Harvard Journal of Law & Public Policy

"Administrative Law in the States"

U.S. Court of Appeals for the Sixth Circuit Chief Judge Jeffrey S. Sutton on the importance of looking to the 50 states for various insights into administrative law questions. He introduces the essays in the symposium and concludes that it would be foolish not to learn from how each state approaches the separation of powers.

Wisconsin Supreme Court Justice Brian Hagedorn on drastic recent changes to administrative law in Wisconsin. He writes about the transformation of judicial doctrines of deference to agency interpretations of law and other recent cases about the administrative state.

Colorado Supreme Court Justice Melissa Hart on the Colorado Supreme Court's varied and inconsistent approach to deference to state administrative agencies. She writes about the implications of Colorado's decision to adopt its own approach to deference instead of following the example of federal administrative law.

Georgia Supreme Court Justice Nels S.D. Peterson on how appellate courts in Georgia approach deference to legal interpretations from state agencies. He writes that recent decisions reaffirm the need to exhaust all interpretive tools before finding that a legal text is ambiguous.

Kansas Supreme Court Justice Caleb Stegall on "who decides" policy questions in Kansas. He writes about the history of separation of powers debates and administrative law questions in Kansas.

Pennsylvania Supreme Court Justice David N. Wecht and Lawrence McIntyre on the lively nondelegation docket in Pennsylvania. They conclude that the Pennsylvania Supreme Court has been less willing than the U.S. Supreme Court to discern intelligible principles in statutes.

Adam White on what the federal government can learn about administrative law from the states. He opens the symposium and describes states as laboratories of administration and liberty in addition to democracy.

Laboratories of Democracy: The States and the Future of Administrative Law

Back in January, the Harvard Student Chapter of the Federalist Society hosted an in-person event on-campus at Harvard Law School to discuss the essays from our symposium.

We are thankful to everyone who came to speak at the event:

Judge Thomas B. Griffith, former judge on the U.S. Court of Appeals for the D.C. Circuit
Justice Brian K. Hagedorn, Supreme Court of Wisconsin
Justice David Wecht, Supreme Court of Pennsylvania
Justice Caleb Stegall, Supreme Court of Kansas
Chief Judge Jeffery S. Sutton, U.S. Court of Appeals for the Sixth Circuit

You can find a video of the event, here. You can also listen to the event as a podcast, here.

Prior Working Papers on State Administrative Law

Daniel Ortner on states that have repealed administrative deference doctrines. He identifies six state supreme courts that seem to reject either Chevron or Auer-like deference (or both).

Daniel Ortner on arguments for and against judicial deference to agencies at the state level. He discovers that arguments made in the states parallel and expand on those made at the federal level.

Benjamin Silver on how states apply the nondelegation doctrine. He identifies the separation of powers and sovereignty as two keys to understanding how states approach delegation questions.

Joseph Postell and Randolph J. May on state experiences applying the nondelegation doctrine. They argue that state evidence suggests that a federal revival of the doctrine would not fundamentally disrupt the modern regulatory state.

Miriam Seifter on how state legislatures are a countermajoritarian force in state politics. She argues that frequent minority party control of state legislatures makes them less majoritarian than the executive officials elected on a statewide basis.

Daniel E. Walters on whether different approaches to the nondelegation doctrine in the states yield divergent outcomes. He finds that courts applying a stricter nondelegation doctrine are no more or less likely to invalidate statutes than those applying an intelligible principle test.

Aaron Saiger on why states should avoid moving in "lockstep" with federal changes to judicial deference doctrines. He argues that state common-law courts operate in a way essentially different than federal courts, which requires alternate approaches to deference.

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This newsletter is edited by Jace Lington, Research Director

Visit Us at: administrativestate.gmu.edu