Jed. S. Shugerman & Jodi L. Short, Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law, 65 B.C. L. Rev. __ (forthcoming, 2024) available at SSRN (August 4, 2023). Edward Rubin The Roberts Court may well overturn the Chevron doctrine this Term, despite the affection for stare decisis that Chief Justice Roberts himself expressed in the related case of Kisor v. Wilkie. Against that backdrop, Professors Jodi Short and Jed Shugerman offer an analysis of why the Court’s major questions doctrine, a predecessor to interring Chevron, is inco ..read more

Nicholas R. Bednar & David E. Lewis, Presidential Investment in the Administrative State, Am. Pol. Sci. Rev., available at Cambridge University Press (Mar. 13, 2023). Anne Joseph O'Connell Presidents are quite popular in administrative law these days, from Elena Kagan’s classic article, Presidential Administration, to the Supreme Court’s fixation on presidential control in its growing Appointments Clause and removal docket. As legal scholars dissect and debate the doctrinal and normative implications of presidential attention in agency decision making, we could benefit from knowing more ..read more

Emily Chertoff, Violence in the Administrative State, 112 Calif. L. Rev. __ (forthcoming 2024), available at SSRN. Christopher Walker With all the changes swirling in administrative law, one trend seems to be getting less attention than perhaps it should: the death of regulatory exceptionalism in administrative law. For decades, many regulatory fields—such as tax, intellectual property, and antitrust—viewed themselves as exceptional, such that the normal rules of the road in administrative law do not apply. The Supreme Court and the lower courts have increasingly rejected such exceptionalis ..read more

Jodi L. Short, In Search of the Public Interest, 40 Yale J. Reg. 759 (2023). Emily Bremer Congress often instructs agencies to act in the “public interest,” but what does that mean? Does it mean anything at all? Professor Jodi Short tackles this in an important new article, In Search of the Public Interest. How one defines the term “public interest” matters, for as Short explains, it appears approximately 1,280 times in the U.S. Code. (P. 767.) Critics of the administrative state decry the term as vacuous—an indication of congressional abdication and unconstitutional delegation of legislati ..read more

Jed H. Shugerman, Freehold Offices vs. "Despotic Displacement": Why Article II "Executive Power" Did Not Include Removal (Jul. 25, 2023) available at SSRN. Jodi Short Originalist scholars have been hard at work to backfill justifications for the Roberts Court’s pronouncement in Seila Law of an indefeasible presidential power to remove executive branch officers (a prominent recent example is Aditya Bamzai and Saikrishna Bangalore Prakash, The Executive Power of Removal). Unable to point to constitutional language authorizing (much less requiring) presidential removal, purported originalists ..read more

Farhang Heydari, The Invisible Driver of Policing, 76 Stan. L. Rev. __ (forthcoming 2024), available at SSRN (June 3, 2023). Wendy Wagner The “toothpaste tube theory” in administrative law predicts that when there are too many legal constraints placed on an agency (pressure on the tube), the agency will simply find another way to accomplish the same task more expeditiously (the toothpaste bulge moves). Examples are everywhere. The National Highway Traffic Safety Administration (NHTSA) deploys automotive recalls to avoid the travails of the rule-making process. Some agencies rely on pre-NPRM ..read more

Daniel Sokol, Antitrust Merger Control as a Regulatory Sandbox, __ J. Corp. L. __ (forthcoming), available at SSRN (Apr. 4, 2023). Daniel Sokol, Marissa Ginn, Robert J. Calzaretta, Jr. & Marcello Santana, Antitrust Mergers and Uncertainty, __ Bus. Law. __ (forthcoming), available at SSRN (Dec. 6, 2022). Richard Pierce In these two articles, Professor Sokol and his co-authors analyze recent changes in the methods the Federal Trade Commission (FTC) uses to review proposed mergers. Their findings are startling. The articles are required reading for anyone who is interested in antitrust ..read more

Daniel Farber, Inequality and Regulation: Designing Rules to Address Race, Poverty, and Environmental Justice, __ Am. J. L. & Equality __ (forthcoming 2023), August 1, 2022 draft available at SSRN. Michael E Herz In the last few years, law schools and law professors have given new attention to how questions of race can be interwoven into courses that are not explicitly about race. Much has been written about how to do so in both first-year and upper-level courses, and, from all reports, the law school classroom has meaningfully changed. My sense, though it is completely impressionistic ..read more

Michael A. Livermore, Catastrophic Risk Review, (forthcoming 2023), available at SSRN. Richard Murphy Dan [Billy Bob Thornton]: Well, our object collision budget’s a million dollars, that allows us to track about 3% of the sky, and beg’n your pardon sir, but it’s a big-*** sky. *** President [Stanley Anderson]: What kind of damage are we… Dan: Damage? Total, sir. It’s what we call a global killer. The end of mankind. Doesn’t matter where it hits. Nothing would survive, not even bacteria. President: My God. What do we do? In the 1998 disaster film, Armageddon, a Texas-sized asteroid is on ..read more

Bridget C.E. Dooling & Rachel Augustine Potter, Regulatory Body Shops, __ Admin. L. Rev. __ (forthcoming 2023), draft available at SSRN. Christopher Walker When it comes to understanding the political dynamics of agency rulemaking, the place to start is Rachel Potter’s book Bending the Rules: Procedural Politicking in the Bureaucracy, about which the Yale Journal on Regulation published a blog symposium in 2019. Through a mix of qualitative and quantitative methods, Potter explores how agency officials—both career civil servants and political appointees—play a role in the rulemaking pro ..read more