Administrative Law

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Article
85.1
Sticky Regulations
Aaron L. Nielson
Associate Professor, J. Reuben Clark Law School, Brigham Young University

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.

Modern administrative law is often said to present a dilemma.

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Essay
75.1
Privacy Decisionmaking in Administrative Agencies
Kenneth A. Bamberger
Assistant Professor of Law, UC Berkeley School of Law
Deirdre K. Mulligan
Clinical Professor of Law; Director, Samuelson Law, Technology & Public Policy Clinic; Director, Clinical Program, UC Berkeley School of Law

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.

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Article
75.2
The New Legal Realism
Thomas J. Miles
Assistant Professor of Law, The University of Chicago
Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

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.

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Article
75.2
The Real World of Arbitrariness Review
Thomas J. Miles
Assistant Professor of Law, The University of Chicago
Cass R. Sunstein
Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

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.

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Article
75.3
Emergency Lawmaking after 9/11 and 7/7
Adrian Vermeule
Professor of Law, Harvard Law School

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.

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Article
75.4
The Unbundled Executive
Christopher R. Berry
Assistant Professor of Public Policy, The University of Chicago
Jacob E. Gersen
Assistant Professor of Law, The University of Chicago

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.

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Article
76.2
“Securing” the Nation: Law, Politics, and Organization at the Federal Security Agency, 1939–1953
Mariano-Florentino Cuéllar
Professor and Deane F. Johnson Faculty Scholar, Stanford Law School; Faculty Affiliate, Stanford Center for International Security and Cooperation

I appreciate helpful conversations with Daniel Carpenter, Michele Dauber, John Ferejohn, George Fisher, Rich Ford, Lawrence Friedman, David Golove, Jill Hasday, Daniel Ho, Don Hornstein, Lewis Kornhauser, David Luban, Eric Muller, Hari Osofsky, Robert Tsai, and Barry Weingast, as well as feedback from workshop participants at Berkeley, Iowa, Oregon, NYU, North Carolina, Southwestern, and Stanford’s Center for International Security and Cooperation. David Kennedy provided extremely helpful written comments on an earlier version of this Article. I also benefited greatly from the research assistance of Mindy Jeng, Shivan Saran, Britt Grant, Mrinal Menon, Connor Raso, Brad Hansen, and Jennifer Liu, as well as the staff of the Stanford Law School Library. I am also grateful to the staff at the National Archives in College Park, Maryland, the Franklin D. Roosevelt Presidential Library, and the Harry S. Truman Library. All of these people should be secure in the knowledge that they are not responsible for any errors or omissions. This is dedicated to Mateo, Ria, and Lucy.

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Article
76.3
Hiding in Plain Sight? Timing and Transparency in the Administrative State
Jacob E. Gersen
Assistant Professor of Law, The University of Chicago Law School; Samuel Williston Visiting Professor of Law, Harvard Law School
Anne Joseph O’Connell
Assistant Professor of Law, UC Berkeley School of Law

Very useful comments were provided by Ken Bamberger, Eric Biber, Tino Cuéllar, Dan Farber, Jesse Shapiro, Matthew Stephenson, Adrian Vermeule, and John Yoo. Financial support has been provided by the Hellman Family Faculty Fund, the Boalt Hall Fund, UC Berkeley’s Committee on Research, and the Jerome Kutak Fund at The University of Chicago Law School. Thanks to Tess Hand-Bender, Roman Giverts, Monica Groat, Edna Lewis, Harry Moren, Stacey Nathan, and John Yow for research assistance. An earlier version of this Article was presented at the 2008 annual meeting of the American Law and Economics Association and in the UC Berkeley’s Center for the Study of Law and Society’s Speaker Series.

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Article
76.4
Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008
Eric A. Posner
Kirkland & Ellis Professor of Law, The University of Chicago Law School
Adrian Vermeule
John H. Watson Professor of Law, Harvard Law School

Thanks to Kevin Davis, Paul Kelly, Geoffrey Miller, Cass Sunstein, students in a Harvard Law School reading group on the Theory of the Administrative State, and audiences at the London School of Economics, NYU Law School and Tel Aviv Law School for helpful comments, and to Elisabeth Theodore for excellent research assistance.