On July 6, the Federalist Society invited Adam White to interview Richard Epstein about his new book: “The Dubious Morality of Administrative Law,” for a public teleforum. Adam and Richard had a wide-ranging conversation about the book’s origin and major themes, and then Richard took questions from the audience. Richard previously keynoted two Gray Center conferences.

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For the 200th anniversary of the Supreme Court’s landmark decision in McCulloch v. Maryland, AEI’s Program on American Citizenship commissioned six distinguished scholars to author essays related to that decision. Gary Schmitt, the editor of the volume, provides an introduction with his essay, “John Marshall and the Politics of McCulloch v. Maryland.” Nelson Lund of George Mason University’s Antonin Scalia Law School offers his criticisms in “The Destructive Legacy of McCulloch v. Maryland.” And finally, Unprecedential’s own Adam White defends Chief Justice Marshall’s decision with “McCulloch v. Maryland and John Marshall’s Judicial Statesmanship.”

All three authors join this special episode of Unprecedential to discuss their views on the landmark case that touched on so many fundamental questions of constitutional governance.

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On June 18, 2020, the Gray Center co-sponsored a live webinar, “A Discussion on Tort Liability for Businesses During COVID-19,” in partnership with the Law and Economics Center at Antonin Scalia Law School. Risks of the COVID-19 spread create substantial uncertainty for businesses when deciding whether to open up and conduct business, especially as they try to identify their duties in preventing COVID-19 related injuries to employees and customers. Likewise, individuals are uncertain about what level of care they should expect from businesses. This subject is extremely complicated because it involves both federal and state issues, as well as tort law. Debate has begun about whether laws should be drafted which limit or expand the traditional rules of tort liability in light of the unique risks of doing business during a public health crisis. 

The live webinar examined the economic and legal arguments for and against COVID-19-related business liability reform. Panelists included Timothy Lytton, Associate Dean for Research & Faculty Development, and Distinguished University Professor & Professor of Law, Georgia State University College of Law; David B. Rivkin, Partner at BakerHostetler, and the Gray Center’s Executive Director, Adam White. The panel was moderated by Donald J. Kochan, Incoming Professor of Law and Deputy Executive Director of the Law and Economics Center, Antonin Scalia Law School at George Mason University. The video is available at: https://administrativestate.gmu.edu/events/a-discussion-on-tort-liability-for-businesses-during-covid-19/. 

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The House of Representatives has resolved to allow members of Congress to vote by proxy. Some members of the House, led by Minority Leader Kevin McCarthy (R-CA) filed a lawsuit challenging the constitutionality of the measure, citing the lack of historical precedent for a measure allowing Representatives to vote from beyond the House.

To discuss the case, and the broader question of how Congress does its constitutional work in times of crisis, we bring you a special two-part episode. Part One features Chuck Cooper and Joel Alicea, two of the lead lawyers arguing against the resolution’s constitutionality. In Part Two we welcome several experts on congressional procedure and precedent: Kevin Kosar, Michael Stern, and James Wallner.

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On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The fourth and final panel examined non-presidential administration, focusing on two new papers: The first by Yale University’s Brian Libgober on “Agency Failure and Individual Accountability,” and the second on “Judicial Administration” by Arizona State University’s Bijal Shah. Maureen Ohlhausen, former FTC Commissioner and current Partner at Baker Botts, joined the authors in the discussion. The panel was moderated by the Honorable Stephen F. Williams, Senior Judge for the U.S. Court of Appeals for the D.C. Circuit. The papers and video are available at: https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

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When we talk about “the Founders” of the United States, we often think of the 55 men of the Constitutional Convention in Philadelphia, 1787. We might even think of the great defenders of the Constitution that emerged from the Convention, such as Alexander Hamilton, James Madison, and John Jay. But to understand the Constitutional republic we have, we must listen not just to its supporters but its detractors – known as the Anti-Federalists – lest we run the risk of playing judge while considering only one party’s brief.

Judge Andrew Oldham of the US Court of Appeals for the 5th Circuit is accustomed to giving both sides their due, and as such set out to explore the argument of the Anti-Federalists, in essays collected by the late Herbert Storing in ‘The Complete Anti-Federalist’. Why were they so worried about the Executive Branch? What can they tell us about today’s administrative state? And how should their arguments inform current debates about the Constitution’s original public meaning? Judge Oldham joins Unprecedential to cover all this and more.

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On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The third panel looked at the tools of administrative management. It centered around two new papers: One on “Central Clearance as Presidential Management” by Andrew Rudalevige of Bowdoin College, and the other on “Regulating Agencies: Using Regulatory Instruments as a Pathway to Improve Benefit-Cost Analysis” by panelist Christopher Carrigan of the George Washington University’s Trachtenberg School, and his coauthors, Mark Febrizio of the George Washington University Regulatory Studies Center and Stuart Shapiro of Rutgers University. Rudalevige and Carrigan were joined on the panel by Lisa Heinzerling of the Georgetown University Law Center and Susan Dudley of the GWU Regulatory Studies Center. The discussion was moderated by Philip Wallach of the R Street Institute.

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On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

In his presentation, Mr. Rauch discussed professionalism as a lost virtue in modern life and modern administration. The video is available at https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

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In Federalist 37, James Madison conceded that even the best lawmakers cannot write perfectly clear laws. “All written laws,” whether the Constitution or in statutes, “are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications”. These discussions happen not just in courts but in the course of actual administration.

So, when a law’s original meaning is not clear, its ambiguities can be resolved — “liquidated” — by the people themselves, through the settlement of precedents set by judges and statesmen alike. To discuss this underappreciated part of republican self-government, and its relation to more familiar notions of judicial stare decisis, Adam welcomes William Baude of the University of Chicago, author of two recent articles on these subjects.

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On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The second panel examined presidential administration and bureaucracy. It revolved around two new papers: “Restoring Accountability to the Executive Branch” by Philip K. Howard of Covington & Burling, and “Presidential Administration, the Appointment of ALJS and the Future of For Cause Protection” by Paul R. Verkuil of the Administrative Conference of the United States. They were joined in discussion by Ambassador C. Boyden Gray of Boyden Gray & Associates, who is also affiliated with the Gray Center as a Distinguished Senior Fellow and a Member of the Center’s Advisory Council. The panel was moderated by the Gray Center’s Executive Director, Adam White. The papers and video are available at: https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

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Hoover Institution fellow Richard Epstein and Adam White discuss the Justice Department’s motion to dismiss charges against Michael Flynn, and the state(s) of Covid-19 precautions. They end with brief observations on Rep. Justin Amash’s brief presidential campaign and Justice Clarence Thomas’s new PBS documentary.

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On February 6, 2020, the Gray Center hosted a public policy conference on “Bureaucracy and Presidential Administration: Expertise and Accountability in Constitutional Government.” The conference was inspired in part by James Q. Wilson’s book, Bureaucracy, and Elena Kagan’s article, “Presidential Administration.” The panel sessions centered around new papers the Gray Center helped to incubate on the history of civil service; on presidential power; on bureaucracy; and on several other important questions of expertise and accountability. Keynote remarks on “The Need for Professionalism” were given by Jonathan Rauch, a Senior Fellow at the Brookings Institution.

The first panel examined the bureaucracy, the presidency, and the origins of federal civil service. It focused on a new paper titled, “From Merit to Expertise and Back: The Evolution of the U.S. Civil Service System,” by Joseph Postell of the University of Colorado at Colorado Springs. He was joined in discussion by Claremont McKenna College’s Andrew E. Busch and Virginia Tech’s Brian J. Cook. The panel was moderated by Melanie Marlowe of the Center for Strategic and International Studies. The paper and video are available at: https://administrativestate.gmu.edu/events/bureaucracy-and-presidential-administration/.

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Today the Electoral College operates mostly like an algorithm, automatically converting popular votes into electoral ones. But the Constitution originally created the Electoral College to be a fourth institution in federal government. Elected and assembled every four years, this body would deliberate and elect the next President of the United States. Nearly 30 years ago, AEI published a collection of essays on the College: “After the People Vote,” edited by the late Walter Berns.

For years, some activists have called for the Electoral College to be abolished and replaced with a single national popular vote, while others ask how much power the states or Congress can assert over the votes of the College’s individual members. The latter question now arrives at the Supreme Court, in a pair of cases to be argued on May 13. Those cases center on questions of the respective powers of Congress, the states, and the electors themselves. To discuss them, Unprecedential welcomes Professor Derek Muller, an expert on the law of American democracy.

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Many Americans have been thrust into a period of unprecedented solitude. That can be daunting and lonely – but solitude can also be an opportunity for working on inner strength, balance, and fortitude. It can even be a time to write your most challenging opinions for the US Court of Appeals for the 6th Circuit.

That is, if you are Judge Ray Kethledge, who joins the podcast to discuss the lessons of his 2017 book, Lead Yourself First. He and Adam discuss how we can learn from models of thoughtful solitude, from Helmand Province, Afghanistan, to Lake Huron, Michigan and from Lincoln to Lawrence of Arabia. They also cover, you know, judge stuff: Whether statutes are ambiguous as they seem, the real meaning of the rule of law, and whether FA Hayek was right about the 9th Amendment.

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With the arrival of new Supreme Court justices, and with the emergence of new debates among scholars like Adrian Vermeule and Philip Hamburger over the Constitution and the administrative state, what will happen to Administrative Law? In a recent Harvard Law Review article, Notre Dame’s Professor Jeffrey Pojanowski assesses the scene and suggests a new school of thought: “Neoclassical Administrative Law.”

In this episode, Adam White interviews Professor Pojanowksi about his article, which was workshopped early on at a Gray Center roundtable. They discuss the article and the conversation that it has sparked.

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Article III of the US Constitution vests “the judicial power” in the Supreme Court and the lower federal courts. How that power should be exercised — and when it has been exercised throughout our country’s history — are questions still fiercely debated today. May courts legitimately exercise “judicial review,” the power to say conclusively what the law is? Or is this notion actually foreign to what the framers of the Constitution had in mind for the judiciary?

Keith Whittington of Princeton University, author of “Repugnant Laws,” a recent book on the surprisingly misunderstood history of judicial review, joins the show to explain what “the Judicial power” has meant to Americans from the founding to the present. He and Adam then venture far afield in legal nerdery while Tal sits in the corner and quietly grits his teeth, remembering the subpar grade Whittington gave his senior thesis.

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On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The Gray Center convened expert panels on topics including whether social media should be regulated for “neutrality,” “regulatory sandboxes” and other laboratories of democracy, artificial intelligence and the future of regulation, and disruptive technology and the future of “law,” during which the new research was discussed. Keynote remarks were given by Kate Lauer, an Advisor for Jiko and former Head of Global Regulatory Strategy for PayPal.

The fourth and final panel looked at disruptive technology and the future of “law.” It centered on two new papers, “Disruptive Deference for Disruptive Technology,” by Jennifer Huddleston, who was at the Mercatus Center at the time the conference was held, and “Will the ‘Legal Singularity’ Hollow Out Law’s Normative Core?” by Georgia State University College of Law’s Robert Weber. They were joined in discussion by Joshua Blackman of the South Texas College of Law Houston. The panel was moderated by Ross Davies, Professor of Law at George Mason University’s Antonin Scalia Law School. The papers and videos are available at: https://administrativestate.gmu.edu/events/technology-innovation-and-regulation/.

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The Supreme Court was set to have a busy spring, with a full docket of cases and a schedule packed with oral arguments. But like so many American institutions, even the Highest Court in the Land had to pause business-as-usual thanks to the COVID-19 pandemic. So what happens now?

Joining us to discuss these questions, and the Court’s role in the upcoming election season, is Amy Howe, a cofounder of SCOTUSblog and one of the leading reporters covering the Supreme Court (and a former Supreme Court lawyer herself). She helps us try to understand how the Supreme Court and its Justices may adapt — or not — to our nearly unprecedented circumstances. Is this going to change the operations of the Court forever? That’s up for debate; you be the judge.

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On November 15, 2019, the Gray Center hosted a public policy conference on “Technology, Innovation, and Regulation.” For this conference, scholars wrote and presented papers on the way regulation affects technological innovation, and vice-versa. The Gray Center convened expert panels on topics including whether social media should be regulated for “neutrality,” “regulatory sandboxes” and other laboratories of democracy, artificial intelligence and the future of regulation, and disruptive technology and the future of “law,” during which the new research was discussed. Keynote remarks were given by Kate Lauer, an Advisor for Jiko and former Head of Global Regulatory Strategy for PayPal.

The third panel examined artificial intelligence and the future of regulation and focused on a paper on “Algorithmic Accountability in the Administrative State,” which was co-authored by panelist David Freeman Engstrom of Stanford Law School, and David Ho of Stanford University. The panel also featured Melissa Netram of the Commodity Futures Trading Commission and New York University School of Law’s Catherine M. Sharkey. The discussion was moderated by the Gray Center’s Executive Director, Adam White. The paper and videos are available at: https://administrativestate.gmu.edu/events/technology-innovation-and-regulation/.

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How often does the Supreme Court declare laws unconstitutional? What does this say about the Court’s place in American politics? These are timeless questions, of course, but Princeton University’s Keith Whittington sheds significant new light on them in his latest book. Drawing from Whittington’s comprehensive database of cases, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present examines how judges have used their power throughout American history, and it upends conventional wisdom in the process.

Enjoy this special episode of Unprecedential, featuring Whittington’s presentation of his book at AEI, his conversation with Adam White, and some sharp audience Q&A.

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