This month has been busy, so I’m late with the August 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. But it’s a really excellent set of papers:
- Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security by Robert Chesney and Danielle Keats Citron (California Law Review forthcoming) [CJW Note: This is a must read — a fascinating and frightening deep dive into “deep fakes” — the technological disruption of using machine learning to make sophisticated fake audio/video of real people. The paper chronicles the development and then surveys potential avenues for reform and regulation, including exploration of the administrative state’s potential role.]
- Chevron As Law by Cass R. Sunstein (Georgetown Law Journal forthcoming) [CJW Note: This is an important contribution to the current debates about Chevron deference. Sunstein’s discussion of APA originalism is particularly insightful, as he pushes back on some of the more textualist, anti-Chevron accounts of Section 706 of the Administrative Procedure Act by examining the statutory context. His recommendations to “domesticate Chevron” are also ones that you see many conservative judges advocating — a more robust, textualist inquiry at Step One, a more-searching arbitrary-and-capricious review at Step Two, and maybe the use of a major questions doctrine at Step Zero.]
- Merryman Redux: A Response to Professor John Yoo by Seth Barrett Tillman (Chapman Law Review forthcoming) [CJW Note: This short response pushes back on the conventional account of President Lincoln’s response to federal orders and Ex parte Merryman.]
- Envisioning Administrative Procedure Act Originalism by Evan D. Bernick (Administrative Law Review forthcoming) [CJW Note: This paper should be read as a companion/counter to Sunstein’s article above. For an overview of the piece, check out Jeff Pojanowski’s recent, engaging Jotwell review of the article.]
- The Attorney General and Early Appointments Clause Practice by Aditya Bamzai (93 Notre Dame Law Review 1501 (2018)) [CJW Note: In this contribution to a terrific administrative law symposium, Bamzai dives into the history of how the Attorney General interpreted the Appointments Clause during the first 100 years since founding. You can read the whole symposium here.]
- Bureaucratic Resistance and the National Security State by Rebecca Ingber (Iowa Law Review forthcoming) [CJW Note: I heard Ingber present the current draft of this teriffic paper at the Third Annual Administrative Law New Scholarship Roundtable this summer at The School Up North. Ingber will be discussing her paper more at the ABA Administrative Law Conference in DC on 11/2.]
- Taft, Frankfurter, and the First Presidential For-Cause Removal by Aditya Bamzai (52 University of Richmond Law Review 691 (2018)) [CJW Note: This is a fascinating account of President Taft’s for-cause removal of two members of the Board of General Appraisers.]
- Taking it to the Limit: Shifting U.S. Antitrust Policy Toward Standards Development by Jorge L. Conteras (Minnesota Law Review Headnotes forthcoming) [CJW Note: This short essay surveys changes in federal antitrust policy and various reactions.]
- Deference Conservation—FOIA’s Lessons for a Chevron-Less World by John Brinkerhoff Jr. & Daniel Listwa (71 Stanford Law Review Online 146 (2018)) [CJW Note: This is a really fun essay exploring what the world would look like without Chevron deference by creatively turning to the context of FOIA litigation.]
- The Welfare Effects of Information by Cass R. Sunstein [CJW Note: Two Sunstein and two Bamzai articles in the top ten. That sounds about right! In this article, Sunstein argues that we “need to take the willingness-to-pay criterion with many grains of salt, and to learn more about the actual effects of information.”]
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 Sam Lioi for helping put together this monthly post. I’ll report back at the start of October with the next edition.