Merrick Garland, Aspiring Administrative Law Professor?

by Daniel Deacon — Friday, Mar. 18, 2016

When I first came across the name Merrick Garland it was not in the context of his role as a judge on the D.C. Circuit. Rather, the Merrick Garland I came across while researching my student Note was the author of Deregulation and Judicial Review, 98 Harv. L. Rev. 505 (1985). Published when Garland was a newly minted partner at Arnold & Porter, the Article is a 40,000-plus word tome on (what else?) deregulation and judicial review. Here is the abstract (I could not find a free link to the Article):

The judicial review of administrative deregulation is a relatively new phenomenon. In this Article, Mr. Garland analyzes the standard of review, the scope of review, and the nature of the remedies that courts have found appropriate for deregulation cases. In the process of shaping these elements of review, the author argues, the courts have transformed the way they perceive the role of administrative agencies generally. Mr. Garland contends that the courts have largely rejected the ‘interest representation’ model that conceived of agencies as quasi-legislatures whose primary purpose was to balance the interests of competing societal groups. Although the newly emerging model also appreciates the political nature of much administrative decisionmaking, its distinguishing feature is a renewed emphasis on ensuring agencies’ fidelity to congressional purpose.

I won’t attempt an exploration of the Article here, except to say that it shows signs of the careful and balanced reputation that Garland later earned as a judge. Instead, I want to speculate about the possible reasons a young partner at a prestigious law firm would write such an Article in the first place (perhaps others know the real reason).

I’ll throw out three theories. One possibility is hinted at in the vanity footnote: Garland had previously served as counsel in Motor Vehicle Manufacturers Ass’n v. State Farm. Perhaps he was so gripped by that case that he just had to explore some of the themes raised by it. The second possibility is that Garland was provoked to write by the deregulatory agenda then being pursued—through administrative law—by the Reagan administration (recall that Chevron as well as State Farm involved efforts to lessen regulatory burdens). The third possibility, not necessarily inconsistent with the others, is that Garland was thinking about transitioning to a career in the legal academy, with one of his specialties being administrative law.

Supplying further evidence for the third possibility, Wikipedia reports that Garland served as Lecturer in Law at Harvard Law School from 1985 to 1986, teaching antitrust law. His other major Article—Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L.J. 486 (1987)—was about (you guessed it) antitrust’s state action doctrine.

Who knows what could have been had Judge Garland entered the academy and not struck off on a humbler path.

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About Daniel Deacon

Dan Deacon’s primary interests are in administrative law and telecommunications and Internet regulation. His work has appeared in the Yale Law Journal, the Administrative Law Review, the Virginia Law Review, and the NYU Law Review. Topics he has written about include executive enforcement discretion, processes for deregulation, and the changing face of communications regulation in the United States.

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