Ms. Olson's presentation was part of the Fall Meeting's program, Annual Review of Judicial and Legislative Developments in Administrative Law and Regulatory Practice. Her remarks on Regulatory Reform were part of her presentation on legislative developments. Judicial Developments since last year's Fall Meeting were addressed by Professors William Funk and Ronald Levin. Professor Funk addressed Supreme Court and circuit court decisions on standing; Professor Levin addressed noteworthy developments in judicial review. Finally, Professor Thomas Sargentich summarized developments in the literature on Administrative Law in the past year.

The final program of the Section's Fall Meeting on October 9, 1998, served as the setting for a candid assessment of Clinton White House Counsel Charles F. C. Ruff's performance in the Ken Starr investigation.

C. Boyden Gray, who occupied the office during the Bush administration, expressed three areas of disagreement with Ruff's perspective on the proper role of lawyers who represent the presidency and not the president.

First, he disagrees with the White House's assertion that Deputy White House Counsel Bruce R. Lindsey may claim common-law attorney-client privilege with respect to communications concerning the Lewinsky matter since the Supreme Court already has held that executive privilege, a constitutional privilege, does not apply in that situation. "How can attorney-client privilege be broader than executive privilege?" [Editor's note: The Supreme Court recently denied certiorari of the DC Circuit's rejection of Lindsey's claim.]

Risk assessment reform will have to wait a bit longer for input from the American Bar Association. At the Council meeting on October 10, the Section's Council deferred until February its decision on whether to recommend that the ABA put its weight behind a set of guidelines intended to improve federal agency risk assessments, as conceived by and proffered to the Council by the Rulemaking Committee.

Committee co-chair and past section chair, Professor Peter L. Strauss, of Columbia University School of Law, subsequently conferred with Messrs. Susman, Noe, Kenkeremath and others and has drafted a proposal responding to their concerns. Professor Strauss anticipates presenting the latest draft at the council's February meeting. A brief discussion of the issues follows:

Risk assessment is defined in the committee's draft report as "a process for calculating the probability and magnitude of identified adverse effects, most commonly excess deaths from cancer caused by exposure to a chemical or radiological agent," the purpose of which, according to the committee's latest proposal, is to "gather, analyze, organize, and present relevant information, in order to help risk managers and the public understand risk."

The committee proposes that the guidelines should apply to any legislation, executive orders, and agency rules formally requiring "that agencies of the Federal Government undertake formal risk assessments in advance of regulatory action concerning health and safety issues."

The four principal areas of disagreement between the committee's first draft, on the one hand, and the alternative submitted at the fall meeting, on the other, and the corresponding compromise provisions assented to by the parties, are as follows:

1. The committee's original guidelines limited peer review "to discrete issues upon which there is considerable disagreement, uncertainty, or other difficulty"; the alternative guidelines deemed peer review desirable and placed no limits on the frequency of its use; the compromise declares: "Peer review . . . is often desirable . . . where there is a complex factual or theoretical basis, although its potential for adding expense and delay makes it inappropriate as a general requirement."

2. The committee's original guidelines counseled that "agencies should use qualitative risk assessments where uncertainty or the qualitative aspects of risk prevail"; the alternative guidelines confined consideration of qualitative factors to the risk management phase and required that such factors be explicitly identified; the compromise simply admonishes that risk assessments "should fully disclose qualitative aspects of risk."

3. The committee's original guidelines declared that risk comparisons "should be approached with great cautio" and that "comparison of unlike risks should be avoided"; the alternative guidelines found risk comparisons helpful and contained no proscription against comparing unlike risks; the compromise declares: "Risk comparisons can be helpful for placing risks in context, but the comparisons should be approached with caution, particularly among dissimilar risks, and critical features of the compared risks should be fully disclosed."

4. The committee's original guidelines required risk assessment "only where the decision is of sufficient significance to warrant the effort"; the alternative guidelines contained no such limitation; the compromise retains the limitation with respect to statutorily imposed requirements but expressly acknowledges that "risk assessments can be useful across a broad range of programs and decisions."