Here is the October 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.

1. ‘Faithful Execution’ and Article II by Andrew Kent, Ethan J. Leib & Jed Handelsman Shugerman (Harvard Law Review forthcoming) [CJW Note: This is a fascinating deep historical dive into what “faithful execution” of the law means, concluding that the Take Care Clause subordinates the President to Congress in many ways.]

 

2. Does the Supreme Court Really Not Apply Chevron When It Should? by Natalie Salmanowitz & Holger Spamann [CJW Note: As I’ve already blogged about here, this study is a fascinating replication of the seminal Eskridge-Baer study of Chevron deference at the Supreme Court.]

 

3. Understanding State Agency Independence by Miriam Seifter (Michigan Law Review forthcoming) [CJW Note: Seifter is one of the most creative and fun reads in the adlaw field by looking to state administrative law, the role of interest groups, etc., and this paper is no exception. I’ve heard her present previous drafts of this paper at both the Third Annual New Administrative Law Scholarship Roundtable and the Federalist Society National Lawyers Convention.]

 

4. Deconstructing the Administrative State: Constitutional Debates over Chevron and Political Transformation in American Law by Craig Green [CJW Note: 100+ pages arguing against the recent attacks on Chevron deference, with the following bottom line: “To overrule Chevron would be the most radical decision about constitutional structure in eighty years, unsettling hundreds of judicial decisions, thousands of statutes, and countless agency decisions.”]

 

5. The Claims of Official Reason: Administrative Guidance on Social Inclusion by Blake Emerson (Yale Law Journal forthcoming) [CJW Note: Emerson is an important newer voice in the field, and this article is a nice example of why. In this article, he argues that some agency guidance can create legally cognizable interests that have to be taken into account when an agency attempts to rescind that guidance.]

 

6. Visual Rulemaking by Elizabeth G. Porter and Kathryn A. Watts (48 Environmental Law Reporter 10,698 (2018)) [CJW Note: This is a nice, shorter adaptation of Porter and Watts’ important full-length NYU Law Review article on how agencies use visuals when regulation.]

 

7. In Defense of a Little Judiciary: A Textual and Constitutional Foundation for Chevron by T.J. McCarrick (San Diego Law Review forthcoming) [CJW Note: Here’s another defense of Chevron deference, responding to the statutory interpretation and constitutional attacks that have been raised.]

 

8. Due Process for Article III—Rethinking Murray’s Lessee by Kent H. Barnett (George Mason Law Review forthcoming) [CJW Note: Here’s my frequent collaborator, arguing that we should rethink the public-rights exception to Article III adjudication. I need to grapple more with Kent’s argument here in the next draft of my latest essay on the constitutional tensions in agency adjudication.]

 

9. Congress and the Executive: Challenging the Anti-Regulatory Narrative by Richard L. Revesz [CJW Note: As one would expect from Revesz, this is an important and smart read. I’m generally in favor of some regulatory reform legislation, but I agree there are dangers with regulatory reform if it is not accompanied by a return to regular legislative activity. Jonathan Adler and I are currently working on a paper that explores that issue in greater detail and calls for Congress to re-engage in a regular reauthorization process.]

 

10. Judge Kavanaugh, Lorenzo v. SEC, and the Future of Deference at the Post-Kennedy Supreme Court by Matthew C. Turk & Karen E. Woody (Administrative Law Review forthcoming) [CJW Note: This is an interesting, deep dive into an adlaw case pending before the Supreme Court, one in which Kavanaugh is recused yet wrote a lengthy dissent while on the D.C. Circuit.]

 

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 in December with the next edition.