Our History: Told By You - a 50th Anniversary Blog Post Series
Thanks to ACUS for asking me to write the second blog post on its 50th Anniversary Blog.
By way of background, I’ve been an “administrative law junkie” for a long time. No, I didn’t subscribe to the Federal Register in high school, but I grew up in the Washington suburbs, my father was an agency lawyer at the NLRB, I majored in government in college, and had the privilege of taking administrative law with one of the giants in the field, Kenneth Culp Davis. After law school I had the chance to teach for a year, as one of seven fresh-out-of-law-school legal writing instructors, at the University of Miami Law School. When Dean Mentschikoff unexpectedly gave each of us the chance to teach a “regular” course each semester, I chose Administrative Law for my spring course. I was having more than a little trouble engaging my night class of soon-to-graduate Miami 3Ls, until I found a “problem supplement” for the Gellhorn-Byse casebook, authored by two young professors, Peter Strauss and Paul Verkuil. Those problems saved the day for me and also introduced me to some helpful and persuasive recommendations by an agency I had not heard much about at the time—the Administrative Conference of the U.S.
When my instructorship was over, in the summer of 1975, I returned to DC to look for a job, and one of the first places I wrote to was ACUS. I guess they were impressed that I had taught Adlaw, so they made me an offer and clinched the deal by giving me a year’s credit for teaching and offering me a GS-12 position. The only hesitancy I had was that Chairman Anthony asked me for a two-year commitment, which seemed like a long time. I swallowed hard, accepted it—and then stayed for 20 years.
I was assigned two projects right off the bat. One was to take over a statistical study of agency adjudications that had been designed, but not carried very far. The other was to work with the Committee on Judicial Review on a project that later became ACUS Recommendation 76-3, Procedures in Addition to Notice and the Opportunity to Comment in Informal Rulemaking. Both were fascinating projects that fueled my later long-term interest in both agency rulemaking and administrative law judge activities. The ambitious statistical study was supposed to chart the activity in every formal (ALJ) adjudication conducted by all the agencies that did them. This required using a three-ply carbonless form (high-tech for its day!) with 21 pre-hearing, hearing, and post-hearing boxes that agency docket clerks were supposed to fill in with dates for each case. This required me to meet with the docket clerks (and some ALJs) at about 30 agencies to cajole them into doing this. Once the cards were completed, we picked them up and keypunched the data (more high-tech!) into cards that were fed into a mainframe computer at HHS, which spit out big sheets of data that were then turned into ACUS statistical reports for 1975-1978. Not only did this produce the only such data ever collected, it was a forced immersion course in agency adjudication.
The Judicial Review Committee project also had great appeal. The committee chair was Bill Allen, the celebrated litigator at Covington & Burling. A key member of the committee was the late great judge Harold Leventhal; one of my first ACUS meetings was in his chambers. The research consultant was a brilliant young Colorado professor named Stephen Williams (later, and still today, a stalwart of the D.C. Circuit). The report was a comprehensive lesson in the difficulties posed by hybrid rulemaking. It was later published in the University of Chicago Law Review, where the student editor of the piece was Ron Levin, current chair of the Committee on Judicial Review!
With this kind of a maiden voyage, I was hooked. We had a great group of young attorneys and staff support, and the membership not only included the eminent Professors Davis, (Walter) Gellhorn, and (Clark) Byse, but also Geoff Hazard, Harry Edwards and Victor Kramer. Practitioners included such leading private sector lawyers as Manny Cohen, Sheldon Cohen, Betty Fletcher, Warner Gardner, Ira Millstein, Owen Olpin, Richard Pogue, and Jim Wesner; public interest lawyers like Jack Greenberg and Jim Flug; and leading government attorneys such as Carl Goodman, Rex Lee, Malcolm Mason, Dick Merrill, and Peter Strauss (then at the NRC). The Plenary Sessions were entertaining and informative, and somehow consensus was always reached—usually with a strategic bit of wordsmithing from Professor Gellhorn.
Later, in 1982, when I was privileged to become part of the leadership team as Research Director, it was not only an honor, but also a challenge to keep up the high standards of quality in work product. With our new concentration on promoting ADR use in the government, and our continuing efforts to streamline rulemaking, promoting public participation and transparency, and some special focus on specific high-volume adjudication programs like social security and immigration, I think we were able to do that.
Of course it was a blow when ACUS became a victim of “collateral damage” in the budget wars of 1994-95, but, as I wrote in an article shortly thereafter, “If [ACUS] Didn’t Exist, It Would Have To Be Invented.” It took 15 years, but when its supporters (crucially including Justices Breyer and Scalia) were able to persuade Congress to reauthorize and fund it again, it was amazing and gratifying for me to see it spring back to life under Chairman Verkuil—in a different office suite, with all new faces on the staff (except for David Pritzker), and a mix of new and former members. It didn’t miss a beat and it has been as productive as ever. The only difference is that in the old days we didn’t have a website, and we had regular “packing parties” in which we assembled large jiffy bags of reports and recommendations to mail to our Committee, Council and Assembly members in advance of meetings. Today, the technology has improved and the postal fees are reduced, but the ACUS consensus-building process and the attention to detail is the same, and there is a never-ending supply of administrative procedure problems to address.
I’m proud to have been a part of ACUS 1.0 and to be a special counsel to ACUS 2.0. Even after 50 great years (well, 50 minus 15) from the passage of the Administrative Conference Act, I feel its best days are ahead of it.
ACUS Special Counsel 2010-Present
ACUS Staff 1975-1995
Professor of Practice in Administrative Law
Washington College of Law