May has gotten away from me with final exam grading and the start of my law school’s Washington, DC, summer program, which I direct. But here is the April 2018 edition of the most-downloaded recent papers (those announced in the last 60 days) from SSRN’s U.S. Administrative Law eJournal, which is edited by Bill Funk.
- The New World of Agency Adjudication by Christopher J. Walker and Melissa F. Wasserman (California Law Review forthcoming) [CJW Note: Over at Written Description last month, Lisa Ouellette posted a thoughtful review of our article. Earlier this month Melissa and I also published an essay at The Regulatory Review on this article and the implications of the Supreme Court’ decision in Oil States for the future of agency adjudication at the Patent Office.]
- Petitioning and the Making of the Administrative State by Maggie McKinley (127 Yale Law Journal 1538 (2018)) [CJW Note: This is a fascinating historical dive into the petitioning process and its role in the administrative state from a new voice in the field. McKinley just joined U Penn law, and I’m so looking forward to her future work.]
- Administrative Law’s Political Dynamics by Kent Barnett, Christina Boyd & Christopher Walker (Vanderbilt Law Review forthcoming) [Last month I did a quick post about our new article over at the Law and Liberty blog, provocatively titled The Federalist Society’s Chevron Deference Dilemma, in which I suggested that Chervon deference *may* have the benefit of reining in partisanship in judicial decisionmaking. The post indeed provoked a passionate response by Philip Hamburger.]
- Remedial Chevron by F. Andrew Hessick (North Carolina Law Review forthcoming) [CJW Note: In this paper my co-blogger Andy provocatively argues that Chevron deference should be transformed from an interpretive tool to a limitation of the remedial power of the courts. Caprice Roberts reviewed the article over at Jotwell earlier this month.]
- Norming in Administrative Law by Jonathan S. Masur & Eric A. Posner (Duke Law Journal forthcoming) [CJW Note: As one would expect from a Masur-Posner collaboration, this is a terrific read. In this paper, Masur and Posner argue that federal agencies often engage in the problematic practice of “norming” — “survey[ing] the practices of firms in a regulated industry and choose a standard somewhere within the distribution of existing practices, often no higher than the median.”]
- Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals by Abbe R. Gluck & Richard A. Posner (131 Harvard Law Review 1298 (2018)) [CJW Note: Another pathbreaking empirical study by Gluck, this one coauthored with retired Judge Posner. The findings of circuit judges’ perceptions of Chevron deference are particularly interesting: the D.C. Circuit judges seem to mostly love it, while circuit judges outside the beltway apparently mostly dislike the doctrine.]
- Government Standing and the Fallacy of Institutional Injury by Tara Leigh Grove (University of Pennsylvania Law Review forthcoming) [CJW Note: Anything Grove writes is a must-read, and this paper is no exception. Here, Leigh argues against any special standing for government institutions.]
- Bid Protests: The RAND Study of DOD Protests at the GAO and the COFC by Steven L. Schooner (Nash & Cibinic Report, V. 32, 2018) [CJW Note: Government contracts scholar Schooner has an interesting, breezy take on a new RAND study on bid protests.]
- The Operational and Administrative Militaries by Mark Nevitt (Georgia Law Review forthcoming) [CJW Note: This is pretty far outside my normal reading list, but looks fascinating as Nevitt argues that the military today consists of two separate ones, as the title suggests: the fighting, operational military, and the administrative, training one.]
- Replacing the Flawed Chevron Standard by Brian G. Slocum (William & Mary Law Review forthcoming) [CJW Note: Slocum adds his voice to the Chevron (somewhat) skeptics crowd, arguing that courts should more carefully distinguish ambiguities that courts should resolve from those that should be left for agencies to address reasonably.]
For more on why SSRN and this eJournal are such terrific resources for administrative law scholars and practitioners, check out my first post on the subject here. You can check out the full rankings, updated daily, here.
Thanks to my terrific research assistant Kaile Sepnafski for helping put together this monthly post (and congrats Kaile on graduating!). I’ll report back at the start of June with the next edition (and a new research assistant).