The fourth year of any presidential term is driven by a sense of urgency, and the administration’s regulatory or deregulatory agenda is no exception. President Trump’s fourth year has been further complicated by the Covid-19 outbreak, and the administration’s regulatory and deregulatory responses. To put the last few months into perspective and to look ahead to the coming months, Adam White chats with Bridget Dooling of George Washington University’s Regulatory Studies Center, and Philip Wallach of the R Street Institute.

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The words “executive privilege” are not found in the Constitution, but some form of presidential secrecy has been asserted by presidents from George Washington onward. The Supreme Court’s latest term ended with major decisions in two cases involving executive privilege: Trump v. Mazars USA, involving subpoenas from the House of Representatives; and Trump v. Vance, involving subpoenas from a New York district attorney.

To discuss the history of executive privilege and modern developments, Adam White is joined by Mark Rozell, Dean of George Mason University’s Schar School of Public Policy and Government, and co-author of the newly published fourth edition of “Executive Privilege: Presidential Power, Secrecy, and Accountability.”

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How should transformative technologies approach the administrative state, and vice versa? In his latest book, “Evasive Entrepreneurs & the Future of Governance,” Adam Thierer of the Mercatus Center reports that tech companies are finding ways to outpace the regulators—and that this is a very good thing.

In this episode, the Gray Center’s director Adam White interviews Thierer about his book (and his previous book, “Permissionless Innovation”), with an eye to how high-tech companies and governments might help improve each other—for all of us.

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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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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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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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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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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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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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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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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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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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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.

In this presentation, Lauer discusses her observations on the current regulatory landscape for technology and innovation based on her career assisting tech companies with regulatory requirements. The video is available at: https://administrativestate.gmu.edu/events/technology-innovation-and-regulation/.

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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 second panel looked at “regulatory sandboxes” and other laboratories of democracy, and focused on a paper titled “The Sandbox Paradox” co-authored by panelist Brian Knight of the Mercatus Center and Trace Mitchell, Research Assistant at the Mercatus Center. Brian was joined on the panel by Kathryn Ciano Mauler and Public Citizen’s Remington A. Gregg. The discussion was moderated by Paolo Saguato, Assistant Professor of Law at George Mason University’s Antonin Scalia Law School, who is also an Affiliated Faculty Member with the Gray Center. The paper and videos are available at: https://administrativestate.gmu.edu/events/technology-innovation-and-regulation/.

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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 first panel examined whether social media should be regulated for “neutrality,” and focused on a paper by Michigan State University College of Law’s Adam Candeub on “Common Carriage and Section 230.” He was joined in the discussion by Georgetown Law’s Anupam Chander, Facebook’s Lori Moylan, and the Mercatus Center’s Adam Thierer. The panel was moderated by the Gray Center’s then-Deputy Director, Andrew Kloster. The paper and videos are available at: https://administrativestate.gmu.edu/events/technology-innovation-and-regulation/.

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For nearly a century, one of the most contentious issues in the Administrative State has been agency “adjudication” — that is, the power of agencies to adjudicate disputes among private parties, or disputes between private parties and the government. But what if a century’s debate has actually caused us to forget what the issues really are?

In the new issue of the Harvard Law Review, Professor William Baude brings us back to first principles on the question of “Adjudication Outside Article III.” Describing the task as “a sympathetic recreation of historical practice,” Professor Baude explains what the Constitution’s provision for “the Judicial Power of the United States” means for territorial courts, for quasi-“court” tribunals like the Bankruptcy Court, and ultimately for the agencies’ own “adjudications.”

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On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” For this conference, the Gray Center invited scholars to write papers exploring ways to improve our nation’s immigration system, and discuss them alongside other experts in panel sessions addressing such topics as whether immigration law is special, the costs and benefits of immigration, judicial review of the immigration system, and the moral underpinnings of immigration law. The event also featured keynote remarks from James McHenry, Director of the Executive Office of Immigration Review at the United States Department of Justice.

The fourth and final panel looked at the role of judicial review in immigration law. The discussion centered around two new papers. The first was “Chevron‘s Asylum: Re-Assessing Deference in Refugee Cases,” by Michael Kagan of the University of Nevada Las Vegas, and the second was “Recalibrating Judicial Review in Immigration Adjudication,” by Christopher Walker of the Ohio State University. 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/the-administration-of-immigration/.

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On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” For this conference, the Gray Center invited scholars to write papers exploring ways to improve our nation’s immigration system, and discuss them alongside other experts in panel sessions addressing such topics as whether immigration law is special, the costs and benefits of immigration, judicial review of the immigration system, and the moral underpinnings of immigration law. The event also featured keynote remarks from James McHenry, Director of the Executive Office of Immigration Review at the United States Department of Justice.

The third panel looked at costs of the U.S. immigration system. The discussion centered around two new working papers: First, “Silence and the Second Wall” by panelists Ming Hsu Chen of the University of Colorado Boulder’s Colorado Law School and Zachary R. New of Joseph & Hall P.C. The second paper, “A Seat at the Table for Citizens: Why the National Environmental Policy Act (NEPA) Applies to Immigration and How Best to Implement this Long Overdue Reform” was authored by Julie Axelrod of the Center for Immigration Studies. The Gray Center’s Executive Director, Adam White, joined the panel to comment on the papers, and it was moderated by the Gray Center’s then-Deputy Director, Andrew Kloster. The papers and video are available at https://administrativestate.gmu.edu/events/the-administration-of-immigration/.

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On October 25, 2019, the Gray Center hosted “The Administration of Immigration.” For this conference, the Gray Center invited scholars to write papers exploring ways to improve our nation’s immigration system, and discuss them alongside other experts in panel sessions addressing such topics as whether immigration law is special, the costs and benefits of immigration, judicial review of the immigration system, and the moral underpinnings of immigration law. The event also featured keynote remarks from James McHenry, Director of the Executive Office of Immigration Review at the United States Department of Justice.

In this presentation, McHenry describes the work of the Office of Immigration Review and places it into the context of the broader discussions we had on immigration law and policy. The video is available at https://administrativestate.gmu.edu/events/the-administration-of-immigration/.

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