Our History: Told By You - a 50th Anniversary Blog Post Series
It is a pleasure for me to participate in ACUS's 50th Anniversary Blog Post. I am one of those people who actually enjoy Administrative Law (except of course for Chevron) and are fascinated by the range of issues which are encompassed within its framework. Over the years, I have found that Administrative Law affects people in their daily lives in profound ways, and that for the most part they are unaware of this fact. As a result, very often I am reminded of the unofficial motto of the ABA's Administrative Law Section, which is "Administrative Law--Everybody Does It!" Levity aside, I have come to realize that a properly functioning administrative law system, which allows the appropriate decision makers to ply their expertise in reaching well-informed conclusions (or, in some cases, delay decisions until issues are clarified outside of the immediate passions of the day), is fundamental to the functioning of our government.
I was therefore pleased when I was asked to Chair ACUS' Committee on Regulation. It has been a great experience for at least three reasons. First, we have been among the most active committees in terms in terms of recommendations proposed and adopted. Second, we have had a very thoughtful and collegial committee composed of scholars, agency officials and practitioners. Third, and most important, we have dealt with a variety of issues which demonstrate the broad scope and impact of Administrative Law.
For example, one of the Committee's earliest recommendations dealt with Rulemaking Comments. The comment process established by the APA in the last century is still fundamentally sound. However, this is the 21st century, and there are innovations in the commenting process that could allow it to promote public participation and improve rulemaking outcomes more effectively. Too often the attempts by ordinary citizens to participate in the rulemaking process have been thwarted by their lack of understanding of how to draft comments or present issues. To address this problem, the recommendation identified "best practices" designed to increase the opportunities for public participation and enhance the quality of information in the commenting process.
The process for adopting the Rulemaking Comments recommendation was fairly straightforward. Such was not the case with the Committee's recommendation on Science in the Administrative Process. The question of how to improve transparency in the use of science in the administrative process is an important issue about which there has been great debate. Based on the ACUS consultant's report, and after having held many Committee meetings (interspersed with public meetings at which the issues were considered) and received input from many other sources, the Committee came forward with solid consensus recommendations suggesting agency practices regarding the use of science and agency disclosures to enhance the transparency of research. Among the suggestions were that agencies should articulate the specific questions to be informed by scientific information, specify study designs for new research, and establish criteria for weighing existing studies. Equally significant, the recommendation encouraged the disclosure of data underlying both privately and federally funded research considered by an agency. It also recommended extending conflict of interest disclosure norms to private parties who submit studies used by an agency.
These are only two of the Committee recommendations which have been adopted by ACUS. In each of these situations, as well as with regard to our other recommendations, the Committee has attempted to balance the need to suggest improvements in the administrative process with the realistic constraints under which government agencies operate. In the future we will be looking at important topics such as the Sunshine Act. I encourage you to read all of the Committee's recommendations. And, remember, one way or another everyone does do Administrative Law!