Administrative Law

The author thanks Stephanie Bair, Jim Brau, Emily Bremer, Brigham Daniels, Daniel Hemel, David Moore, Carolina Núñez, Jarrod Shobe, Paul Stancil, Lisa Grow Sun, Christopher Walker, the participants in the 2017 Center for the Study of the Administrative State’s Research Roundtable on Rethinking Due Process and accompanying public policy conference held at the Antonin Scalia Law School, George Mason University, and the participants in the 2016 Rocky Mountain Junior Scholars Forum held at the S.J. Quinney College of Law, University of Utah. Michael A. Stevens provided helpful research assistance. Financial support was provided by Brigham Young University and the Center for the Study of the Administrative State.

Much appreciation to Colin Bennett, Malcolm Crompton, Peter Cullen, Lauren Edelman, Robert Gellman, Chris Hoofnagle, Robert Kagan, Jennifer King, Anne Joseph O’Connell, Fred B. Schneider, Ari Schwartz, Paul Schwartz, and the participants at The University of Chicago Law School’s Surveillance Symposium for insight, comment, and discussion; Nuala O’Connor Kelly and Peter Swire for consenting to be interviewed about their experience in privacy leadership roles within the United States government; Sara Terheggen, Marta Porwit Czajkowska, Rebecca Henshaw, and Andrew McDiarmid for their able research.

We are grateful to Susan Bandes, Elizabeth Foote, Jacob Gersen, Brian Leiter, Anup Malani, Richard McAdams, Elizabeth Mertz, Jonathan Nash, Eric Posner, Adam Samaha, Larry Solum, David Strauss, Noah Zatz, and participants in a work-inprogress lunch at The University of Chicago Law School for valuable comments. We are also grateful to the Chicago Judges Project, and in particular to Dean Saul Levmore, for relevant support.

Deep thanks to Professors Miles and Sunstein for sharing their draft with me in time to permit this response, and to the editors of The University of Chicago Law Review for agreeing to print it in the same issue.

We thank Eric Posner, Richard Posner, Peter Strauss, and Adrian Vermeule for helpful comments. We are also grateful to Rachael Dizard, Casey Fronk, Darius Horton, Matthew Johnson, Bryan Mulder, Brett Reynolds, Matthew Tokson, and Adam Wells for superb research assistance.

I wish to acknowledge a general debt of inspiration to Mark Tushnet’s studies of political controls on emergency powers, although my views differ from Tushnet’s. See generally, for example, Mark Tushnet, The Political Constitution of Emergency Powers: Some Lessons from Hamdan, 91 Minn L Rev 1451 (2007); Mark Tushnet, The Political Constitution of Emergency Powers: Parliamentary and Separation-of-Powers Regulation, 3 Intl J L in Context 275 (2008). For helpful comments, thanks to Jack Goldsmith, Eric Posner, Philip Rumney, Matthew Stephenson, Cass Sunstein, Mark Tushnet, workshop participants at Harvard Law School, and participants at a conference held at Harvard Law School to discuss Cass R. Sunstein, Worst-case Scenarios (Harvard 2007). Thanks to Elisabeth Theodore and Jennifer Shkabatur for helpful research assistance.

We are grateful to Bruce Ackerman, Rachel Brewster, Ethan Bueno de Mesquita, Bob Cooter, Rosalind Dixon, John Ferejohn, David Fontana, Heather Gerken, Tom Ginsburg, Dan Ho, Cheng-Yi Huang, Alison LaCroix, Daryl Levinson, John Matsusaka, Richard McAdams, Drew Navikas, Anne O’Connell, Eric Posner, Adam Samaha, Lior Strahilevitz, Madhavi Sunder, Cass Sunstein, Matthew Stephenson, and Adrian Vermeule for helpful comments and conversations. Johanna Chan, Monica Groat, Stacey Nathan, and Peter Wilson provided excellent research assistance. Financial support was provided by the John M. Olin Foundation and the George J. Stigler Center for the Study of the Economy and the State.