Our History: Told By You - a 50th Anniversary Blog Post Series
My engagement with administrative law and ACUS began early, when I was a student at the University of Chicago Law School in the early 1970s. I had been a political science major in college, and administrative law struck me as a natural extension of that interest. K.C. Davis’s course on administrative law gave me a stimulating introduction to the field. Davis had his idiosyncrasies, but the class was deservedly popular. I have published some recollections about that course in The Administrative Law Legacy of Kenneth Culp Davis, 42 San Diego Law Review 315 (2005). I also chose a Freedom of Information Act topic for my law review comment. In those days it was possible for me to read every reported FOIA case, a task that nobody would undertake today.
Later, I became the Article Editor of the law review. Somebody told me that among the best new articles on administrative law were the studies written by consultants for the Administrative Conference of the United States – whatever that was. So I solicited a few of those studies for publication in the Review. The first one we published was a study of banking regulation by Ken Scott of Stanford (along with a reply by a lawyer from the Office of the Comptroller of the Currency). The second was an article on hybrid rulemaking by Steve Williams, who was a law professor at Colorado at that time but would later become an eminent D.C. Circuit judge. I’ve returned to consult that article many times since then.
Now let’s flash forward a few years to when I was an associate in the Washington, D.C., office of Sutherland, Asbill & Brennan. One of the firm’s partners was the chair of the Judicial Review Committee of the ABA Section of Administrative Law. The Section had agreed to generate an evaluation of a pending legislative proposal known as the Bumpers Amendment. This bill would have amended the APA to abolish all judicial deference to agencies on issues of law. The partner didn’t have time to write the report himself, so he enlisted me and another lawyer at the firm to do so. We wrote a highly critical report, which was duly endorsed by the Council of the Section.
The ABA House of Delegates, however, wasn’t exactly persuaded. It passed a resolution endorsing the Bumpers Amendment. That vote inspired Senator Bumpers to offer his proposal as a floor amendment to an unrelated bill a few weeks later. Spurred by the ABA’s vote and the populist sentiments that pervaded the politics of that period, the Senate impulsively adopted the amendment by a wide margin.
At this point, with the amendment seemingly speeding toward enactment, the Administrative Conference realized that it had better take a stand forthwith. It needed to find a consultant on short notice. And who would be better to ask than the main draftsman of the ABA report? Well, maybe someone else could have done better with the topic, but at least I was well versed in the issues. By this time I had left practice to join the faculty of Washington University School of Law. And so it came to pass that I became an ACUS consultant in my very first semester as a professor, well before I had ever taught an administrative law course. That probably doesn’t happen very often, but for me it was a welcome introduction to the world of the Conference. I worked with the Committee on Judicial Review. The chair of the committee at that time was Bill Allen, who was unfailingly gracious and helpful even though his ideas on the Bumpers Amendment were very different from mine.
The rest, as they say, is history. In the ensuing years I did a few more consultant projects for ACUS; kept busy through the ABA Section with the institutional side of administrative law during the period in which the Conference was defunded; and eventually was invited to join the Conference as a public member when ACUS 2.0 convened.
Now I have come full circle, serving as chair of the Committee on Judicial Review (with Bill Allen still contributing as a valued member). Recognizing the boost that ACUS gave me in the early days of my professional career, I appreciate the opportunity to support its mission as it strives to clarify and guide thinking about the administrative law challenges of today.