Call to Order. Chairman Young called the meeting to order shortly after 8:30 a.m. The following Council members were present: Chairman Young, Chair-Elect Levin, Vice Chair Gray, Secretary Drew, Treasurer Leo, Representative to House of Delegates Ernest Gellhorn, Immediate Past Chair Cass, Michael Astrue, Phyllis Bernard, Harold Bruff, Stephen Calkins, Judith Dowd, Russell Frisby, Judith Kaleta, Eleanor Kinney, Randolph May, Daniel Ortiz, Daniel Rodriguez, Stephen Williams, and Lynne Zusman.

Approval of the Minutes. The minutes of the August 1999 Council meeting were approved without amendment.

Chair Report. Chairman Young reported on the 1999 Fall Section Officers = Conference, at which he talked to ABA President Bill Paul and President-Elect Martha Barnett about technology and House of Delegate issues. He then thanked the committees for the breadth of programs offered at this fall meeting, and outlined future Council discussions at the next midyear, spring and annual meetings.

Chair-Elect Report. Chair-Elect Levin noted the locations of the four meetings during his year as Chair. He is in the planning period and wants other suggestions for projects, but plans to explore the use of committee and Section e-mail List Serves, teleconferencing, and increased use of the web.

Introduction of Persons Present. At Chairman Young=s request, those present introduced themselves.

Future Section Meetings.

Midyear Meeting. Ronald Smith reported that he has received two proposals for programs at the Midyear Meeting, and asked that committee chairs and others contact him as soon as possible with other program suggestions. He has received interest from his requests for corporate and law firm sponsorship. He will be contacting the Texas Bar Administrative Law Section and the local bar for co-sponsorship of programs and events.

Spring Meeting. Christine Franklin reported that a hotel has been secured for the meeting. She will be contacting committee chairs soon for program proposals.

Annual Meeting. Chairman Young read a report on the London meeting from Program Chair Janet Belkin. The hotel is the St. James Court. There is a reception planned for July 16, 2000, and a reception and boat trip planned for July 18, 2000.

Administrative Law Developments Survey. The Chair thanked all who had contributed to this effort, and Jeff Lubbers reported that about 25 committees had submitted reports, with two more expected soon. The Administrative Law Developments will be published by Thanksgiving in hard copy. It will be a stand alone book which will look like an early edition of the Antitrust Law Developments. Contributors will be cited more fully in the final product than they were in the initial draft reproduced for this meeting.

Publications Committee. Randy May gave the report of the publications committee. The Section now has two books in progress. The first, ADR in Federal Agencies, has gone to ABA Publishing and will be ready for distribution in four to six months. The Federal Administrative Procedure Source Book should be ready to go to ABA Publishing by the end of the year. May also briefly reported on sales of The Lobbying Manual and A Guide to Federal Agency Rulemaking, both of which have done well (producing $22,000 net profit by August 1999). The committee is also discussing future design of Section publications with the idea of creating a similar look and design for all Section publications. Finally, since the Administrative Law Review is beginning to receive a surplus of articles, these articles might be developed into a series of monographs or practice guides if decisions were made as to what such a series should look like (e.g., types and desired length of featured articles).

Administrative Law Review. Editor-in-chief Stacey King reported that the Administrative Law Review has the largest circulation of any student-edited law review in the United States. The March issue will focus on immigration, the next issue on the regulation of politics, the next on privatization and deregulation/telecommunications (with contributions to be developed from two separate symposia), and the next on the Department of Justice. No symposia are planned in 2001.

Comments on Draft of Uniform Mediation Act. Philip Harter, Section liaison to the drafting committee on the Uniform Mediation Act, presented his comment letter on that draft act. The next meeting of the drafting committee is at the end of October. There was considerable discussion among Council members on Harter's comments on the draft Act, particularly with respect to the acts confidentiality provisions, which propose allowing a court to override confidentiality if the court determined it necessary to prevent manifest injustice. Judge Dowd questioned section 4(a), which does not require a mediator to reveal conflicts. Michael Astrue asked that a line be added to section 2(c) (2) to address A violation of a current or future child custody order. Stephen Calkins raised concerns about the public policy section. After further discussion, the Council decided that Harter would submit the comment letter as drafted while raising some of the issues voiced by Council members at the drafting committee meeting.

Section of Dispute Resolution Draft Recommendation on Revision of the Code of Ethics for Commercial Arbitrators. Phyllis Bernard presented the draft recommendation on revising the code of ethics for commercial arbitrators for the Section of Dispute Resolution. (Bernard is also a Council member of that Section.) Several Council members raised issues of concern, particularly concerning whether the proposed recommendation included an unconstitutional restriction of commercial speech. Bernard edited the draft to provide that an arbitrator shall disclose conflicts, and will take all other Council comments back to the Dispute Resolution Section and then bring the revised recommendation back to the Council at its February meeting in Dallas. Chairman Young suggested that the Dispute Resolution Section also seek comments from the Business Law Section.

Preliminary Consideration of Recommendation by Veterans Affairs Committee on Judicial Review. Ronald Smith presented the following preliminary recommendation, and asked the Council for advice on how to proceed

A Congress should amend 38 U.S.C.' 7297(a) to grant the United States Court of Appeals for the Federal Circuit jurisdiction to review decisions of the United States Court of Appeals for Veterans Claims in any case where the United States Court of Appeals for Veterans Claims decides a question of law not previously decided by the Board of Veterans' Appeals.

Smith explained that the purpose of the recommendation is to avoid disfavored situations in which binding precedent could be created on an unreviewed issue. After some Council discussion, Chairman Young suggested that the committee communicate with the concerned agencies to seek their comments, and bring the recommendation back to the Council in Dallas.

Consideration of Section Recommendation on the Federalism Accountability Act. Chair-Elect Levin presented the draft report and recommendation on the Federalism Accountability Act on behalf of the Ad Hoc Committee on Federalism. Carl Gold, Senate Government Affairs Committee and a member of Senator Levin's staff, briefed the Council on the status of the bill, which seeks to narrow the circumstances in which preemption by federal statute or regulation may be implied. He noted that Senator Levin is open to and welcomes specific comments on the bill, but that the bill is unlikely to go to the floor before Congress adjourns this session. The House bill has already been pulled until next session. There was considerable Council discussion of the draft report and recommendation. Tom Susman took a pragmatic approach to the bill and would vote to oppose it, since businesses are worried about the impact of the bill. Bill Funk observed that the bill seems really to be two bills B one narrowing federal preemption and one requiring federalism assessments -- and that the Section is on record as opposing additional assessments on agencies without a close look. Peter Strauss supported the nonproliferation of impact statements and pushed for a general rationalization of rulemaking. Neil Eisner raised issues with respect to the additional burden of assessment requirements. Judge Williams commented about the generally murky state of preemption law, with its tremendous varieties and degrees of conflicts, and concluded A Don't speak to me of reform, sir -- things are bad enough as they are. Nevertheless, Ernie Gellhorn believed that the opponents of the bill were speaking from both sides of their mouths in asserting either that there was way too little federal preemption or way too much. After further Council discussion, Leonard Leo suggested that, despite substantive disagreements among Council members, the Section could provide assistance by listing options and standards to advance the debate. Chair-Elect Levin will take all Council comments back to the Chair of the Ad Hoc Committee, Michael Asimow.

Preliminary Consideration of Recommendation by Rulemaking Committee on Agency Internet Sites. Peter Strauss presented a preliminary draft recommendation regarding agency uses of the Internet for rulemaking. Ernest Gellhorn suggested an editorial change, using A Executive instead of A President. Stephen Calkins asked about the uniformity of sites. Chairman Young asked Strauss to circulate copies of the draft recommendation to all Section committees for their comment and to bring back a new draft at the February meeting in Dallas.

Scope of APA Project. Ronald Cass described the general status of the APA project, and asked that anyone with questions or concerns communicate their views to Chairman Young, Chair-Elect Levin, or himself. Judy Kaleta suggested that all drafts from the APA committee be circulated to the rest of the committees for comment. She also asked that the information about the Advisory Committee and any updates on the project be posted on the Section's website.

Budget Item Re: Developments Book Distribution. Leonard Leo noted that the publications committee had discussed three options for distributing the Administrative Law Developments: 1) selling the book via a two-tiered system whereby Section members pay a lower price than non-Section members; 2) selling the book to the ABA=s package plan and offering it free to Section members; 3) funding distribution of the book out of the Section=s profits. A motion to distribute the book through option 2 was made and seconded, and carried by a 9-8 vote.

New Business. Chairman Young asked the Council for their input on the possible creation of a technology committee and a legislative committee. Although there was some discussion of this proposal, no consensus was reached.

There being no further business, the meeting was adjourned around 12:30 p.m.