Michael Asimow, Greenlighting Administrative Prosecution, 75 Admin. L. Rev. 227 (2023). Michael E Herz Administrative law scholarship comes in many shapes and sizes. One distinctive type is the law review article that began life as a consultant’s report for the Administrative Conference of the United States (ACUS) and then was published in revised (read: more compulsively footnoted and obsessively bluebooked) form in a law review. The ACUS lineage is always visible in the final product: these articles are grounded on and often provide an overview of current practice, they are even-handed, a ..read more

Rebecca Green, FOIA-Flooded Elections, 85 Ohio St. L.J. __ (forthcoming 2024); William & Mary L. Sch. Rsch. Paper No. 09-478, available at SSRN (Oct. 3, 2023). Margaret Kwoka The Freedom of Information Act (FOIA) has been the subject of increasing controversy. Some scholars, like Mark Fenster in his recent illuminating work on transparency and populism, remain convinced it holds a singular place in protecting democracy and promoting accountability. Others, like Dave Pozen, are concerned it promotes regressive, anti-public-spirited outcomes. While my own work has defended FOIA’s continue ..read more

Adam Crews, The Executive Power of the Federal Courts, 56 Ariz. St. L.J. __ (forthcoming 2024), available at SSRN (September 5, 2023). Mila Sohoni As I write this Jot, it’s entry-level hiring season. Scores of exciting candidates are crisscrossing the country to present new papers, eat dinners, and tour campuses and neighborhoods. Over the years, I have come to observe that there are a few things that a candidate can reliably bet will occur during a job talk at my law school. Someone will point out your paper’s relevance to some completely unexpected area of law, or vice versa. Someone’s ph ..read more

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