The ABA Administrative Law Section’s Transformative Year, by Lynn White

by Guest Blogger — Wednesday, July 20, 2016

This has been a banner year for the ABA Section of Administrative Law and Regulatory Practice–one that has been full of accomplishments. The Section has set a record for the most program events in its history, including some terrific new programs such as “The 60th Anniversary of the Hoover Commission: Lessons for Regulatory Reform”, the “Great Debate” series about “Chevron Bias and the Administrative State”, and “Administrative Law Summer School”. The Section also initiated the new joint venture Blog with the Yale Journal on Regulation, added the ALR Accord Discussion Series to the Administrative Law Review (run by American University’s Washington College of Law), hosted a guest speaker’s series for Section leadership meetings that has featured several prominent federal judges, developed the recommendations of ABA Resolution 106B that urges Congress to modernize the Administrative Procedure Act, and several other important projects. Many of these accomplishments were spearheaded by current Section Chair Jeff Rosen, a partner at Kirkland & Ellis, and a longtime member of the Section. In a few weeks, Chair Rosen will pass the gavel to current Chair-elect Renee Landers. Below, he discusses his esteemed legal career, the Section’s historic role in the development of administrative law and how the Section can continue to influence the practice in the coming years.

1. How long have you been a lawyer?

I graduated from Harvard Law School in 1982. I joined Kirkland & Ellis LLP in June 1982, and have spent most of my career there, except for 2003-2009 (when I was general counsel at the U.S. Department of Transportation and then general counsel & senior policy advisor at the White House Office of Management and Budget.).

2. Did you always want to be a lawyer?

There were no lawyers in my family, and I don’t think I had even met a lawyer until I applied to law school, but for some reason I had been interested in becoming a lawyer from a very early age. I had the impression that lawyers could help to make our society function and to make it better.

3. Your practice has focused on both regulatory and litigation matters. What are some of the key differences between these kinds of legal practice?

They are something like partially overlapping Venn diagrams, with areas of differences and some areas of overlap. In terms of differences, I suppose one might start with civil litigation being governed heavily by the Rules of Civil Procedure, while regulatory matters are governed heavily by the Administrative Procedure Act. Practitioners in each area have to master those, as well as other relevant bodies of law. The overlap, of course, is litigation about regulatory matters, such as challenges to agency rulemakings or defense of government enforcement actions. But one of the less appreciated aspects is that even in business litigation, the government regulatory background often provides important context to the parties’ actions, claims, and defenses. Federal preemption of state tort claims due to regulatory statutes or rules is one example. And contracts and other business actions sometimes can only be understood against the regulatory background, especially in regulated industries.

4. How did this play out while you were General Counsel at DOT versus OMB?

When I was general counsel at each of those agencies, I had responsibilities for overseeing both regulation and litigation (as well as other subjects, of course). But the proportions differed: at DOT we were involved in much more litigation than at OMB, and OMB of course exercised review and coordination over all significant regulation from all executive branch agencies (and not just from DOT). At DOT we also had a much larger staff of our own agency lawyers, though at OMB we were able to draw upon the expertise of lawyers from all the executive branch agencies. They were both terrific experiences.

5. Do you think the Administrative Law Section gets enough credit for its historical role in the development of administrative law?

Probably not. I think some of that has been lost, and deserves more attention. I’ve tried to write about some of that in my “Chair’s Columns” in the Administrative and Regulatory Law News quarterly magazine. The Section’s predecessor, the ABA Special Committee on Administrative Law, was created in 1933, and quickly became one of the leading proponents of legislation to govern the administrative process. The Section played a critical role in the legislation that ultimately passed as the Administrative Procedure Act in 1946. The Section’s reports are interesting historical reading, which hopefully will soon be available on the Section’s website, and there are a couple of Section award-winning articles that discuss some of that history: See Shepard, “Fierce Compromise: The Administrative Procedure Act Emerges From New Deal Politics,” 90 Nw.U.L.Rev. 1557, 1569-1575 (1996); Schiller, “The Era of Deference: Courts, Expertise, and the Emergence of New Deal Administrative Law,” 106 Mich.L.Rev. 399, 421-25 (2007). Separately, see also James E. Brazier, “An Anti-New Dealer Legacy: The Administrative Procedure Act,” 8 J.PolicyHistory 206 (1996).

The Section this year added an important new committee on the Legal History of Administrative Law, chaired by Professor Nicholas Parrillo of Yale Law School, so perhaps more of the Section’s history in administrative law will regain attention. The Section sponsored a terrific program last March about proposals for regulatory reform in the 1950’s, for example: see here.

To the extent that the present becomes a part of history, let me also mention that this year, at the Section’s instigation, the ABA House of Delegates passed a resolution calling on Congress to update the Administrative Procedure Act (Resolution 106B). That was a consensus set of recommendations. It is an important development, which hopefully will gain some attention, and will enable the Section to play a constructive role.

6. Do you see any parallels between the current regulatory climate and the New Deal era that led to the creation of the Special Committee on Administrative Law?

I am sure that Section members have their own opinions on that. However, it is interesting to re-read the very first report from the Section’s predecessor committee in 1933, and the concerns that gave rise to it, including: “problems raised by the growing multiplicity of administrative tribunals and by the apparently irresistible tendency to delegate the promulgation of regulations and the hearing and determination of controversies to such tribunals”, and “the legislation enacted during the first session of the 73rd Congress…represents an advance of federal administrative machinery, on a scale and to an extent never before attempted, into fields not heretofore brought under federal regulation.” Report of the Special Committee on Administrative Law, 56 Annu. Rep. A.B.A. 407, 408 (1933).

7. What do you think are some of the major developing issues in administrative law?

I have spoken about these at a number of the Section’s programs over the last few years, so will have to encourage readers of this interview to come to Section events to hear about them! However, some of my own thoughts about the accumulation of regulation during the decades since the Section was formed, and the concept of using budget tools to achieve better results, are included in a pair of articles in the Administrative Law Review and in National Affairs Journal. Also, I’ve posted about some topics of interest on the Section’s Notice and Comment blog.

8. How would you like to see the Section play a role in addressing key issues in administrative law?

The key thing for the Section is to have knowledgeable lawyers of varied experiences (or viewpoints) discussing important issues at our programs, and/or to write about them in our publications, to facilitate the opportunity for both learning and persuasion. At times, that can facilitate the development of a consensus within the Section’s Council, which enables the Section to play an advisory role to make recommendations to government actors. Having programs, publications, and policy discussions can also be professionally useful to lawyers who work in the regulatory world–and in any event the Section has a wonderful group of people with whom to socialize.

9. What issues did you aim to focus upon while Section Chair?

Being the Chair is part of a four-year process, from the time one is elected Vice-Chair, to Chair-Elect, to Chair, and then Last Retiring Chair. I was fortunate to be part of a group that in 2013 helped put together the Section’s Strategic Implementation Plan (available here), and as Chair this year the implementation of that Plan has been my top priority, because it involves adding real value for administrative law practitioners and scholars–more programs, more publications, more committee activities, consensus policy recommendations, interaction between “bench and bar”, and so forth. Thanks to the efforts of a very large number of Section officers, council members, committee chairs, and other members, the Section has made a great deal of progress in the current year.

10. Do you have any advice for aspiring or new administrative law practitioners?

Yes–join the Section of Administrative Law & Regulatory Practice. First, the Section publishes indispensable guidebooks as to Rulemaking, Adjudication, and Judicial Review, and a Blackletter Statement of Administrative Law, and these are especially helpful if you are relatively new to the practice of administrative law. Second, in addition to those books, go to the Section website and its blog, read its other publications, attend its annual conferences, listen in to its teleforums, join a committee, and so on. Even if you participate in other organizations as well, I think you will find it helpful to get involved with those aspects of the Section that most interest you.

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