Gray Matters

Adam White and Jace Lington chat with former OIRA Administrator Paul J. Ray about his new paper, “Lover, Mystic, Bureaucrat, Judge: The Communication of Expertise and the Deference Doctrines.” In the paper, Mr. Ray critiques the expertise rationale for Chevron deference, arguing that agency employees can share much of the special knowledge they use to make decisions with reviewing courts. Notes:Lover, Mystic, Bureaucrat, Judge: The Communication of Expertise and the Deference Doctrines, Paul J. Ray Keynote Address and Fireside Chat, October 2023, Chevron on Trial: The Supreme Court and the Future of Agency Authority and Expertise 

The C. Boyden Gray Center for the Study of the Administrative State and the Georgetown Journal of Law & Public Policy recently hosted a series of webinars ahead of a forthcoming symposium on Equity and the Administrative State. This episode of Gray Matters is a panel discussion from February 23, 2024, about affirmative action and other ways regulators pursue equity through the administrative state featuring Ming Chen, Jesse Merriam, and Bijal Shah, moderated by Kmele Foster.Notes:Video of the Webinar

The C. Boyden Gray Center for the Study of the Administrative State and the Georgetown Journal of Law & Public Policy recently hosted a series of webinars ahead of a forthcoming symposium on Equity and the Administrative State. This episode of Gray Matters is a panel discussion about the use of racial classifications to make public policy and how race has affected the character of American institutions featuring David Bernstein, Jonathan Berry, and Joy Milligan, moderated by Renée Landers. Notes:Watch a video of the discussion

Jace Lington chats with Scalia Law Professor Donald J. Kochan about Florida and Disney. They discuss his recent paper applying public choice theory to Florida’s Reedy Creek Improvement Act of 1967 and why the special treatment Disney received from the state is not a good model for state and local regulation.Notes:Disney v. Democracy? A Public Choice and Good Governance Analysis of Florida’s Reedy Creek Improvement Act of 1967 and Its Resulting Regime, Donald J. Kochan

Adam White and Jace Lington chat with Law Professor Jed Handelsman Shugerman about lingering issues following the Supreme Court’s decision in the Biden v. Nebraska student loan case. They discuss a recent paper Shugerman presented at a Gray Center research roundtable, “Biden v. Nebraska: The New State Standing and the (Old) Purposive Major Questions Doctrine.”Notes:Biden v. Nebraska: The New State Standing and the (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman Major Questions About Presidentialism: Untangling the “Chain of Dependence” Across Administrative Law, Jed Handelsman Shugerman and Jodi L. Short Standing Without Injury, Jonathan H. AdlerAn Originalist Defense of the Major Questions Doctrine, Michael D. Ramsey The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill The Ghosts of Chevron Present and Future, Gary S. Lawson The Major Answers Doctrine, Lisa Heinzerling The New Purpose and Intent in Major Questions Cases, Anita S. Krishnakumar The Major Questions Doctrine: Unfounded, Unbounded, and Confounded, Ronald M. Levin The Minor Questions Doctrine, Aaron L. Nielson The Major Questions Doctrine Outside Chevron‘s Domain, Adam R.F. Gustafson

Adam White and Jace Lington chat with Law Professor Michael D. Ramsey about how originalists can defend the major questions doctrine as a substantive canon of interpretation. He examines post-ratification court practice and other substantive canons designed by judges to minimize the harms of judicial error when interpreting ambiguous statutes. Ramsey recently presented a paper on this subject at a Gray Center research roundtable.Notes:An Originalist Defense of the Major Questions Doctrine, Michael D. Ramsey The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill The Ghosts of Chevron Present and Future, Gary S. Lawson Biden v. Nebraska: The New State Standing and the (Old) Purposive Major Questions Doctrine, Jed Handelsman Shugerman The Major Answers Doctrine, Lisa Heinzerling The New Purpose and Intent in Major Questions Cases, Anita S. Krishnakumar The Major Questions Doctrine: Unfounded, Unbounded, and Confounded, Ronald M. Levin The Minor Questions Doctrine, Aaron L. Nielson The Major Questions Doctrine Outside Chevron‘s Domain, Adam R.F. Gustafson

Adam White and Jace Lington chat with Ronald A. Cass about the future of judicial deference to agency actions. They discuss Cass’s recent papers, “Fixing Deference: Delegation, Discretion, and Deference Under Separated Powers,” published by the New York University Journal of Law & Liberty, and “Getting Deference Right,” published by National Affairs. Ron insists on the crucial distinction between court decisions on what the law means and agency decisions about policy implementation.Notes:Fixing Deference: Delegation, Discretion, and Deference Under Separated Powers (NYU JLL, 2023) Getting Deference Right (National Affairs, 2024) Loper Bright Amicus Brief, Gray Center Separation of Powers Clinic Gray Center 2023 Rule of Law Symposium

The C. Boyden Gray Center for the Study of the Administrative State, the Mercatus Center, and the Journal of Law, Economics & Policy recently hosted a full-day symposium on the future of financial regulation. This episode of Gray Matters is a panel discussion featuring law professors Bridget C.E. Dooling and Kristin E. Hickman along with former OIRA Administrator Paul J. Ray and AEI Senior Fellow Emeritus Peter Wallison, moderated by Gray Center Co-Executive Director Adam White. They discuss OIRA oversight of financial regulators and how to reform federal financial regulations.Notes:Videos from the conference

The C. Boyden Gray Center for the Study of the Administrative State, the Mercatus Center, and the Journal of Law, Economics & Policy recently hosted a full-day symposium on the future of financial regulation. This episode of Gray Matters is a panel discussion featuring the Hoover Institution's John H. Cochrane and professors Kathryn Judge, Jonathan R. Macey, and Todd J. Zywicki, moderated by Scalia Law professor Paolo Saguato. They discuss banking regulation, consumer finance, and what might be coming next in the world of financial regulation.Notes:Videos from the conference

This episode of Gray Matters is the first of a three-part series and came out of a recent conference we hosted about the future of financial regulation. In this episode, Adam White speaks with former FDIC Chairman Jelena McWilliams about the current state of banking regulation. They discuss presidential oversight of the FDIC, how chairman McWilliams thought about her role, and the most pressing issues facing banks and regulators today.Notes:Videos from the conferenceChairman McWilliams's op-ed in the Wall Street Journal about changes in FDIC practiceWall Street Journal editorial about Chairman McWilliams's resignation from the FDIC

Adam White and Jace Lington talk with Jonathan Wolfson about a new Cicero Institute report that ranks state regulatory systems based on their accountability, responsiveness, and transparency. They discuss cost-benefit analysis, regulatory sunset provisions, state-level centralized review modeled on OIRA, and venue restrictions.Notes:Matthew Nolan and Jonathan Wolfson, National Regulatory Reform: Progress Rankings Report 2023Matthew Nolan and Jonathan Wolfson, State Regulatory Processes Are Ripe for Reform, GoverningCicero Institute, Regulatory Sunset Model BillHarvard Journal of Law & Public Policy, Administrative Law in the StatesEugene Scalia, 2023 C. Boyden Gray Lecture on the Administrative State, “The Administrative State Debate: A View From the Secretary’s Office”2021, Stuart Shapiro, The Impossibility of Legislative Regulatory Reform and the Futility of Executive Regulatory Reform, George Mason Law Review

The C. Boyden Gray Center for the Study of the Administrative State and the George Mason Law Review recently hosted a full-day symposium on the future of Chevron Deference. This episode of Gray Matters is a panel discussion featuring Professors Caroline Cecot, Emily Hammond, and E. Donald Elliott, moderated by Senior Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit. They focus on the future of Chevron deference in the context of environmental and energy law.Notes:Video from the conference

The C. Boyden Gray Center for the Study of the Administrative State and the George Mason Law Review recently hosted a full-day symposium on the future of Chevron Deference. This episode of Gray Matters is a panel discussion featuring Aditya Bamzai, Jonathan S. Masur, Eli Nachmany, Victoria F. Nourse, moderated by Judge Chad A. Readler of the U.S. Court of Appeals for the Sixth Circuit.Notes:Video from the conference

The C. Boyden Gray Center for the Study of the Administrative State and the George Mason Law Review recently hosted a full-day symposium on the future of Chevron Deference. This episode of Gray Matters features a keynote address from Paul J. Ray, presenting his new paper about the expertise rationale for Chevron deference, and a fireside chat between Mr. Ray and Gray Center Co-Executive Director Jennifer Mascott, discussing his time as Administrator of OIRA.Notes:Video from the conferencePaul J. Ray's new paper on the expertise rational for Chevron deference

The C. Boyden Gray Center for the Study of the Administrative State and the George Mason Law Review recently hosted a full-day symposium on the future of Chevron Deference. This episode of Gray Matters features a discussion among Law Professors Lisa Schultz Bressman, John F. Duffy, and Daniel E. Walters about the Loper Bright case and whether some form of judicial deference is unavoidable in administrative law, moderated by Judge David J. Porter of the U.S. Court of Appeals for the Third Circuit.Notes:Video of the panel discussion from the conference

The C. Boyden Gray Center for the Study of the Administrative State and the George Mason Law Review recently hosted a full-day symposium on the future of Chevron Deference. This episode of Gray Matters features a discussion among Law Professors Kent Barnett, Christopher J. Walker, and Thomas W. Merril about the Loper Bright case and the future of Chevron deference, moderated by Judge Paul B. Matey of the U.S. Court of Appeals for the Third Circuit.Notes:Video of the panel discussion from the conference

Adam White and Jace Lington talk with Josh Chafetz and Noah Rosenblum about some of the big administrative law cases pending before the U.S. Supreme Court. They discuss the state of the Court, where things might be headed next, and problems with conservative critiques of the Administrative State.Notes:Noah Rosenblum, What We Talk About When We Talk About the Rule of Law in the Administrative State, New York University Journal of Law & Liberty, Vol. 16, No. 3 (2023)Josh Chafetz, The New Judicial Power Grab, St. Louis University Law Journal, Vol. 67 (2023)CFPB v. CFAS, Brief of Professors of History and Constitutional Law as Amici Curiae (2023)Beau J. Baumann, Americana Administrative Law, Georgetown Law Journal, Vol. 111 (2023)Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, Vol. 131, No. 7 (2022)Ashraf Ahmed, Lev Menand, Noah Rosenblum, The Tragedy of Presidential Administration, Gray Center Working Paper, 2021Josh Chafetz, Congress’s Constitution (2019)Leah Litman, Debunking Antinovelty, Duke Law Journal, Vol. 66, No. 7 (2017)Kent Barnett & Christopher J. Walker, Chevron in the Circuit Courts, Michigan Law Review, Vol. 116, No. 1 (2017)Daniel R. Ernst, Tocqueville’s Nightmare, Oxford University Press (2014)Richard E. Neustadt, Presidential Power and the Modern Presidents (1991)

Adam White talks with NYU Law Professor Richard Epstein and Gibson Dunn Partner Allyson Ho about the upcoming Supreme Court term. They discuss the recent oral argument in the CFPB funding case, the major questions doctrine, how the court should approach revisiting Chevron deference in the upcoming Loper Brightcase, and the adjudication system in the U.S. Patent and Trademark Office.

Jace Lington talks with AEI’s Philip Wallach about his new book, Why Congress. They discuss what makes Congress central to the American system of representative government and reasons we should look to Congress as the best place to resolve the most contentious issues of our day. Notes: Why Congress, Oxford University Press, 2023The Revolution That Wasn’t: Conservatives Against Congress, 1981-2018, Gray Center Working Paper 20-22Incompletely Theorized Agreements in Constitutional Law, Cass Sunstein, 2007

Adam White and Jace Lington talk with James-Christian Blockwood about his recent Government Executive article on civil service reform. They discuss current proposals to make more civil servants removable at will as well as ways to build a nonpartisan, professional federal workforce that protects the interests of the American people.Show Notes: Let's Rethink the Management of our Civil Service, GovExec, April 28, 2023Partnership for Public Service, Website"You Report to Me” Gray Matters Podcast with David Bernhardt, May 10, 2023“Do Public Sector Unions Make Government Unaccountable?” Gray Matters Podcast with Philip K. Howard, January 24, 2023From Merit to Expertise and Back: The Evolution of the U.S. Civil Service System, Joseph Postell, Gray Center Working Paper, February 6, 2020Restoring Accountability to the Executive Branch, Philip K. Howard, Gray Center Working Paper, February 6, 2020Quick Actions to Improve Recruitment, Hiring, and Accountability in the Federal Workforce, Jeffrey Salmon, Gray Center Policy Brief, March 2021Civil Service: Pulling In or Pushing Away, Sally Katzen, Gray Center Policy Brief, August 2020Jimmy Carter and Civil Service Reform, Stuart E. Eizenstat, Gray Center Working Paper, May 22, 2019