Table of Contents

Brand Name or Equal: Without "Equal," It's Not Competitive

Steven L. Schooner, George Washington University - Law School

Toward A Critical Theory of Administrative Law

Bijal Shah, Arizona State University (ASU) - Sandra Day O'Connor College of Law

Deference is Dead (Long Live Chevron)

Nathan D. Richardson, University of South Carolina - Law Library, Resources for the Future

Influence Through Intimidation: Evidence from Business Lobbying and the Regulatory Process

Cary Coglianese, University of Pennsylvania Law School
Alex Acs, Department of Politics, Princeton University

Trump's Ad Hoc Administrative State

William Yeatman, Cato Institute, Georgetown University, Law Center


U.S. ADMINISTRATIVE LAW eJOURNAL

"Brand Name or Equal: Without "Equal," It's Not Competitive" Free Download
34 Nash & Cibinic Report ¶ 52 (Thomson Reuters 2020)
GWU Legal Studies Research Paper No. 2020-72
GWU Law School Public Law Research Paper No. 2020-72

STEVEN L. SCHOONER, George Washington University - Law School
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One of the more common rules in federal government procurement is that the Government may describe its needs to the private sector by specifying a “brand name? product, as long as the Government adds the words “or equal? to the brand name and articulates the product’s salient physical, functional, or performance characteristics that are essential to the Government’s needs. This broadens the potential for competition and helps reduce the government's reliance on unduly restrictive specifications.

Two recent examples - one the subject of a GAO bid protest decision, the other a recently posted commercial-item procurement - suggest that, while some basic, longstanding, foundational issues in federal procurement remain largely unchanged, that doesn't mean they are not ignored.

"Toward A Critical Theory of Administrative Law" Free Download
Yale Journal on Regulation, Notice & Comment, 2020

BIJAL SHAH, Arizona State University (ASU) - Sandra Day O'Connor College of Law
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This contribution to a symposium on "Racism in Administrative Law" suggests that administrative law is missing a robust tradition of critical legal studies: https://www.yalejreg.com/nc/toward-a-critical-theory-of-administrative-law-by-bijal-shah/ (adapted for the American Bar Association, Administrative & Regulatory Law News (Summer 2020)).

"Deference is Dead (Long Live Chevron)" Free Download

NATHAN D. RICHARDSON, University of South Carolina - Law Library, Resources for the Future
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Chevron v. NRDC has stood for more than 35 years as the central case on judicial review of administrative agencies’ interpretations of statutes. Its contours have long been debated, but more recently it has come under increasing scrutiny, with some—including two sitting Supreme Court justices—calling for the case to be overturned. Others praise Chevron, calling deference necessary or even inevitable. All seem to agree the doctrine is powerful and important.

This standard account is wrong, however. Chevron is not the influential doctrine it once was and has not been for a long time. It has been eroded from the outside as a series of exclusions have narrowed its scope, and has been hollowed out from the inside as Justices have become ever more willing to find clear meaning in statutes, thereby denying deference to agencies. In recent years, agencies have won only a handful of statutory interpretation cases, and none in more than four years. Only once since 2015 has deference been outcome-determinative. At the Supreme Court level (though not, for now, in the circuit courts), deference is dead. The once-crystal Chevron has turned to mud. As a result, however, it is less likely to be formally overturned than widely believed—critics of deference and of administrative power on the Court would gain little. Instead, Chevron’s future is likely to be one of further decline, at least in the short term. This has implications for major policy areas like climate change, health care, and immigration where regulatory policy is necessary and challenges are likely to reach the Court.

"Influence Through Intimidation: Evidence from Business Lobbying and the Regulatory Process" Free Download
U of Penn Law School, Public Law Research Paper No. 20-40

CARY COGLIANESE, University of Pennsylvania Law School
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ALEX ACS, Department of Politics, Princeton University
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Interest group influence in the policy process is often assumed to occur through a mechanism of exchange, persuasion, or subsidy. Here, we explore how business groups may also exert influence by intimidating policymakers—a form of persuasion, but one based not on the provision of policy information but of political information. We develop a theory where a business firm lobbies a regulator to communicate political information about its capacity to commit to future influence-seeking activities that would sanction the regulator. The regulator assesses the credibility of this message by evaluating the firm’s commitment to lobbying. Guided by our theory, we present evidence consistent with expectations that intimidation can shape regulatory outcomes to the advantage of certain firms, both through a chilling effect, where lobbying derails nascent regulatory plans, as well as a retreating effect, where opposition to published proposals leads to their withdrawal.

"Trump's Ad Hoc Administrative State" Free Download
Cato Institute, Legal Policy Bulletin No. 6

WILLIAM YEATMAN, Cato Institute, Georgetown University, Law Center
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A hallmark of the Trump administration has been its creation of significant administrative programs on the fly, based on ambiguous or implied textual authorities, and without any public input. This paper discusses four such initiatives involving almost $40 billion in benefits and dispensations from more than $400 billion in tariffs. The programs discussed in this paper were launched after summary notices amounting to a total of 28 pages in the Federal Register. Rarely, if ever, has so much administrative policy been rendered in so few words. Far from reflecting the mere execution of the law, these programs instead take on the attributes of core congressional prerogatives—namely, the power to spend public funds and regulate international commerce. To date, Congress has acquiesced to these developments. If lawmakers remain passive, future presidents will build on Trump’s template, which reflects an unfortunate innovation in executive power.

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This area includes content in the field of U.S. administrative law and regulation.

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Advisory Board

U.S. Administrative Law eJournal

WILLIAM R. ANDERSEN
University of Washington School of Law

MICHAEL R. ASIMOW
Dean's Executive Professor of Law, SANTA CLARA LAW SCHOOL , Santa Clara University - School of Law

HAROLD HASTINGS BRUFF
University of Colorado Law School

RONALD A. CASS
Honorable Ronald A. Cass, Chairman, Center for the Rule of Law, Honorable Ronald A. Cass, Esq., Cass & Associates, PC, Dean Emeritus, Boston University School of Law, Senior Fellow, Center for the Study of the Administrative State at George Mason School of Law

RONALD M. LEVIN
Washington University in St. Louis - School of Law

RICHARD J. PIERCE
George Washington University Law School

SUSAN ROSE-ACKERMAN
Henry R. Luce Professor of Jurisprudence, Law School and Department of Political Science, Emeritus, Yale Law School

EDWARD L. RUBIN
Dean, Vanderbilt University - Law School, Vanderbilt University - Department of Political Science

PETER H. SCHUCK
Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law, Yale University - Law School

SIDNEY A. SHAPIRO
University Distinguished Professor of Law, Wake Forest University School of Law

CASS R. SUNSTEIN
Robert Walmsley University Professor, Harvard Law School, Harvard University - Harvard Kennedy School (HKS)