The Metamorphosis of Legal Education Symposium on Legal Education

Professor Brook\u27s remarks this morning provide a context for my own. I mean to say a word or two for the classical era. One of the characteristics of legal education over the past half century or so, one that we ought not give up, has been its passion for order in a chaotic world. Striking as it is to say that a passion for order ill suits a chaotic world, the world has ever been chaotic – and that passion, our principal defense. The question is, with what principles of order do we exercise that passion, to subdue unruly fact. Do we look to doctrine, to the characteristic tools of the legal profession, to understandings economic or semiological? Recent years have seen a shift in focus concerning what constitutes order, at least from a pedagogic perspective. We have turned our attention to the instrumental or vocational side of the legal profession, as distinct from concern for the content of law and the public order aspirations to which law may relate. That shift seems to me reflected in Professor Gorman\u27s comments

Rulemaking in the Ages of Globalization and Information: What America Can Learn from Europe, and Vice Versa

This paper stems from a project on European Union Administrative Law undertaken by the American Bar Association\u27s Section on Administrative Law and Regulatory Practice. It explores the generation of normative texts by the Commission of the European Union, its executive body, from the perspective of Americans familiar with notice and comment rulemaking. Legislative drafting (an exclusive responsibility of the Commission), subordinate measures corresponding to American rules and regulations, and soft law generated by the Commission are all considered. In creating legislative proposals, the Commission uses techniques quite like American rulemaking, but with consultative practices (including electronic consultations) that seem more conducive to dialogue, and less open to simple grass-roots lobbying efforts. Soft law processes are also often highly consultative. But subsidiary legislation (rules and regulations, in American parlance) are generated following procedures considerably less transparent and open to public input, such as comitology, than one finds here

Presidential Rulemaking

One of the prominent issues during the 1992 presidential campaign was abortion, in particular the federal government\u27s role in financing counseling activities that might promote it. In the Bush Administration, the Department of Health and Human Services had adopted a controversial regulation to withhold federal funds from any family planning or other medical service that included counseling about abortion in its activities; the Clinton campaign promised to rescind that regulation if Clinton were elected President. Shortly after his election, in a prominent White House ceremony, President Clinton announced that he had directed the rescission of the prior rule and the initiation of a fresh rulemaking to consider the issue. As the 1996 campaign approached, teen-age smoking, and the role of the tobacco companies in promoting it, emerged as a large public issue. During the summer of 1995 the President announced that he was directing the undertaking of a major rulemaking effort to control the advertising and distribution of tobacco products to minors; and in August of 1996 he announced the issuance of the rule. While the voluminous rulemaking documents emerged from the Food and Drug Administration, in which any authority to adopt the rule had been statutorily placed, press releases called it the President\u27s rule, and President Clinton led the public relations effort to announce its adoption, as he had its earlier proposal

Implications of the Internet for Quasi-Legislative Instruments of Regulation

It is a quarter century since I began telling my Administrative Law students that they had better be watching the Internet and how agencies of interest to them were using it, as they entered an Information Age career. The changes since then have been remarkable. Rulemaking, where the pace has perhaps been slowest, is now accelerating into the Internet, driven by a President committed to openness and consultation. This paper seeks little more than to point the reader toward the places where she can find the changes and watch them for herself

Legal Frameworks and Institutional Contexts for Public Consultation Regarding Administrative Action: The United States

Written for a forthcoming book on e-governance and e-democracy, this essay summarizes the current state of play in electronic rulemaking in the United States. It thus focuses on a context in which the use of electronic consultation by “executive branch” actors engaged in policy-making has been developing for over a decade, and has reached a point of considerable, although not final maturity. Initially developed haphazardly, agency-by-agency, it is now (albeit with friction in the gears) moving towards a centralized regime. The practice is rarely consultative in the full sense the book as a whole will address; while the public is given opportunities for input, and the input processes are transparent in varying degrees, online exchanges in the nature of a conversation or round-table are not yet imagined in conventional rulemaking – although first steps in that direction have been taken under the aegis of the Office of Science and Technology Policy

One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court\u27s Limited Resources for Judicial Review of Agency Action

Recent writing about the Supreme Court has stressed the implications of the extraordinary growth in the Court\u27s docket – and, even more, the growth in the overall level of judicial activity in the nation\u27s courts – for its performance of its judicial task. Generally, this writing seeks first to determine whether the Court has been forced to bypass questions it ought normally to hear (for example, square conflicts between two of the federal circuits), editorializes about the increasing bureaucratization of the Court, and passes on to normative questions about what if anything ought to be done to ease the Court\u27s burden. Scholars debate how many conflicts are being let slide, sometimes reaching the reassuring conclusion that the number is little if at all larger than the number of cases unwisely or unnecessarily heard. They worry about the impact on the general quality of the Justices\u27 intellectual efforts of having more law clerks to supervise and less time per vote to consider the matters on their plate. Contention then turns to whether we should have an intercircuit tribunal to resolve questions that are important (but not too important); how such a tribunal ought to be arranged in relation to the Court; or whether, perhaps, the real solution lies in specialized appellate tribunals or in more thoughtful efforts by Congress to prevent statutory controversy by careful drafting or periodic legislative revision. This Article is principally concerned with a question that seems not to have been much asked in these debates: whether, and in what ways, the stresses on the Court might be manifesting themselves in its opinions and, particularly, in doctrine. It starts with a brief presentation of the Court\u27s well-known caseload problems, presenting them in relation to the overall dimensions of the judicial system in the United States. Looking beyond the Court\u27s success in identifying and resolving particular, actual conflicts among the lower courts, this perspective treats as the central problem of interest the Court\u27s shrinking opportunity to contribute discipline, cohesion and control to the nation\u27s law. The essay then examines three different respects in which it might be thought the natural limits on the Court\u27s opportunities to speak are shaping the character of the legal order

The Challenges of Fitting Principled Modern Government – A Unified Public Law – To an Eighteenth Century Constitution

The papers presented at a fall 2016 conference at Cambridge University, The Unity of Public Law?, generally addressed issues of judicial review in the UK, Canada, Australia and New Zealand, often from a comparative perspective and the view that unifying impulses in “public law” arose from the common law. Accepting what Justice Harlan Fisk Stone once characterized as the ideal of “a unified system of judge-made and statute law woven into a seamless whole by [judges],” The Common Law in the United States, 50 Harvard L Rev 4 (1936), this paper considers a variety of issues that have complicated maintaining the unity of public law under our written Constitution: executive discretion; interpretive styles, variations in “due process”; the Constitution’s failure to define our government and resulting variation in its institutions; the resulting difficulty in accommodating “separation of powers”; issues of presidential role; and the place of “deference” in accommodating uniform national administration of law in the face of the geography of our essentially final circuit courts

On the Difficulties of Generalization – \u3ci\u3ePCAOB\u3c/i\u3e in the Footsteps of \u3ci\u3eMyers\u3c/i\u3e, \u3ci\u3eHumphrey’s Executor\u3c/i\u3e, \u3ci\u3eMorrison\u3c/i\u3e and \u3ci\u3eFreytag\u3c/i\u3e

The Supreme Court’s decision last June in Free Enterprise Fund v. Public Company Accounting Oversight Board is torn between general principle and particularity in considering important questions of separation of powers in American constitutional law – just as had been an earlier decision that, in some respects, it both repudiated and modeled, Freytag v. Commissioner. Indeed, the same problems live in two earlier cases that are staples of the administrative law and separation of powers repertoire, Myers v. United States and Humphrey’s Executor v. United States. The Supreme Court has a long history of reaching sensible results in its assessments of congressional choices about the structures of government, while having the deuce of a time explaining them. It has taken later developments to pick up the pieces. Its Free Enterprise Fund decision is only the most recent exhibit in this right-minded but inelegantly reasoned chain of opinions. The essay reviews the tensions between holding and explanation in the earlier cases, and then turns to the PCAOB decision. On the general question what the Constitution provides about the relationship between President and the Departments of executive government, in some respects matters are more settled than they had been at the beginning of the year. All nine Justices placed the independent regulatory commissions where they should be – not a “headless fourth branch,” but elements of the executive branch in a different – but necessary – oversight relationship with the President. The Supreme Court’s most important function, as Charles Black once remarked, lies in its validation of Congress’s choices, not the opposite. But the majority opinion strangely refuses to say, flat out, that its conclusion entailed a presidential right to demand “Opinions in writing” from the SEC – the one authority Article II of the Constitution explicitly gives the President over the acts of domestic agencies – even as its holding reasons from the necessity of effective presidential oversight of executive action. And it seems unwilling to choose between saying that Congress may not place a for-cause-protected institution within another for-cause-protected institution, an untroubling proposition, and saying that Congress may not give for-cause protection to any “inferior officer” serving in a for-cause-protected institution, an unsettling proposition. Can Congress not protect the Inspector General of the SEC in the same way as it protects the Inspector General of the Department of Justice? The Court’s approach to such issues would be greatly improved by pragmatic attention to reality and detail