Publications
The Lost English Roots of Notice-and-Comment Rulemaking, 134 Yale L.J. ___ (forthcoming 2025) (job talk)
Available upon request
Abstract
Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have alternatively suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking.
This Article argues that these histories are incomplete. Using original archival research, it demonstrates that notice-and-comment rulemaking was a product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth and early twentieth centuries. In the New Deal Era, influential American reformers tracked important developments in English rulemaking as they grappled with the rapidly-changing American legal ecosystem. Yet, as this Article emphasizes, Americans only partially adopted the English procedural framework. While they transplanted the “notice” and “comment” dimensions of English procedure, the Americans ultimately decided not to import a legislative veto that was — and remains — a critical part of rulemaking procedures in England.
By offering a revisionist account of the origins of notice-and-comment rulemaking, this Article makes two contributions. First, it takes a first step toward recovering a now largely forgotten world of Anglo-American administrative law. Second, it illuminates current debates about the legitimacy of notice-and-comment rulemaking. With many current critiques of notice-and-comment rulemaking centering on the procedure’s supposed lack of democratic accountability, the history this Article traces pushes us to ask whether belatedly transplanting an English-style legislative veto would legitimate the procedure.
To Save Democracy from Juristocracy: J.B. Thayer and Congressional Power after the Civil War, 38 Const. Comment. ___ (forthcoming 2024) (with Samuel Moyn)
Abstract
As many Americans once again worry that their democracy is hostage to judicial power, this Article is an archival reconstruction of how famed Harvard law professor James Bradley Thayer set out on a mission to stave off the syndrome before it stuck — though he failed in the end.
The Article shows how Thayer (1831-1902) arrived at his epochmaking theory of judicial deference to safeguard Congress’s power after democratic revolutions of the Civil War and Reconstruction. Indeed, he hoped to see America transformed in the direction of British legislative supremacy, in which Parliament — and not the courts — reigned supreme. Scandalized by growing ventures to weaponize the federal judiciary so as to preempt the newly federalized American democracy, Thayer bet on something new in global history: mass democracy on a national scale, understood as an experiment in collective learning. The Article thereby provides a new periodization and transatlantic contextualization of the struggles over judicial fiat routinely associated the Supreme Court’s defense of laissez-faire in the early twentieth century.
And yet, as this Article emphasizes, Thayer failed in the long run. His democratizing fix, judicial self-restraint under the “clear error standard” — which this Article shows had the same English roots as his democratic and parliamentary theory — has tragically misled reform. It embroiled Americans in a neverending debate on judicial “restraint,” even as Thayer proposed a doctrinal prescription encouraging judges to limit their power themselves. He therefore postponed an institutional remedy for an institutional syndrome. For this reason, his mission, in spite of its partial implementation after his death, now has to be rescued in its own right. Judicial self-restraint has not prevented the continuation and even the intensification of the very juristocratic syndrome Thayer rightly found so troubling. If Americans still remain with him at the dawn of our commitment to democracy, they will have to save it from judges in a new way all their own.
A Part of Asia or Apart from Asia: Zionist Perceptions of Asia, 1947 – 1956, in Unacknowledged Kinships: Postcolonial Studies and the Historiography of Zionism 233 (Stefan Vogt et al. eds., 2024) (with Arie Dubnov)
Abstract
This chapter traces the history of Zionist Asianism from the end of the British Mandate through the early years of the State of Israel. Looking especially at Zionists’ attempts to forge ties to the emerging postcolonial states in Asia, it compares and contrasts the discourse and diplomatic activities of the Hebrew University’s delegation to the Asian Relations Conference in 1947 with the way Zionism was imagined, and imagined itself, at the time of the Conference of Asian and African Nations in Bandung in 1955. The chapter asks whether this history testifies to a relationship between Zionism and the postcolonial world that is even more complicated and ambivalent than the notion of an unacknowledged kinship is able to suggest.
Uncertain Comparisons: Zionist and Israeli Links to India and Pakistan in the Age of Partition and Decolonization, 39 L. & Hist. Rev. 451 (2021)
Abstract
This article examines Zionist/Israeli comparisons and connections to India and Pakistan between 1945 and 1955. While Zionists found striking similarities between the unfolding realities in Palestine/Israel and South Asia, the exact nature of the comparison was quite equivocal. On the diplomatic axis, Israelis sought to establish full diplomatic relations with India by underscoring the similarity of their two nations. Here, comparisons were a way of positioning Israel as an analogue of India. On the technocratic axis, Israelis looked to Pakistan as a model for constructing legal institutions to expropriate Palestinian property. The appeal of Pakistan as a model was due to a perceived glaring difference: Pakistan was a Muslim state, Israel the Jewish State. Meanwhile, as Zionists/Israelis looked to India and Pakistan, Indians returned the gaze. Indian technocrats found the methods Israel used to resettle Jewish refugees and immigrants worthy of emulation. When they came to Israel to study these resettlement efforts, they were-unknowingly-often looking at projects that had been built upon former Palestinian land which the Israeli government had seized using the transplanted Pakistani law-the very same laws that had dispossessed India's new citizens, whom the technocrats were seeking to resettle. This article ultimately uncovers a broader post-imperial technocratic sphere in which nascent states continued to transplant legal institutions developed in other parts of the former colonial world to construct their own.
Legal Liminalities: Diverging Jurisdictional Claims in the Transition from British Mandate Palestine to the State of Israel, 62 Compar. Stud. Soc’y & Hist. 359 (2020)
Abstract
This article explores the legal and temporal dimensions of the transition from British Mandate Palestine to the State of Israel on 15 May 1948. I examine the paradoxical character of Israeli jurisdictional claims during this period and argue that it reveals the Israeli state's uncertainty as to whether the Mandate had truly passed into the past. On one hand, Israel recognized the validity of the Mandate administration's jurisdiction until 15 May; I employ the Israeli trial of the British citizen Frederick William Sylvester to demonstrate how Israel even predicated its own jurisdictional claims on their being continuous with those of its predecessor. In this case, the Mandate administration was cast as having entered the realm of the past. Conversely, the Israeli state contested Mandate laws and legal decisions made prior to 15 May to assert its own jurisdictional claims. In the process, Israeli officials belied their efforts to bury their predecessors in the past and implicitly questioned whether the past was in fact behind them. By simultaneously relying upon and disavowing past British legal decisions, the Israeli state staked a claim on being a “completely different political creature” from its British predecessor while retaining its colonial legal structures as the “ultimate standards of reference.” Israel's complex attitude toward its Mandate past directs our attention to how it was created against the backdrop of the receding British Empire and underscores the importance of studying Israel alongside other post-imperial states that emerged from the First World War and the mid-century decolonizing world.