Brandon Duke (University of Houston Law Center) has posted The Judicial Administration Era, 129 W. Va. L. Rev. (forthcoming 2027), on SSRN. Here is the abstract:
Modern administrative law is no longer best understood as a contest between Congress and the President. It is now a three-cornered rivalry in which the Supreme Court has increasingly asserted control over the administrative state. Over the last decade, the Court has used a more formalist separation-of-powers doctrine to set the terms of governance—who may administer, what policy choices are permissible, and where enforcement must occur. Rather than restoring authority to the political branches, the Court’s moves relocate control to Article III courts. This Article explores the emergence of judicial administration—an era in which the Court increasingly manages the structure, scope, and operation of the administrative state through jurisdictional allocation, remedial design, and institutional default rules. By shifting governing choices away from politically accountable actors without supplying a workable alternative, judicial administration recasts separation of powers as a problem of judicial control. That transformation raises foundational questions about democratic legitimacy, institutional competence, and the proper role of courts in modern governance.
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