First Panel Convened on Administrative Law Statement

Atlanta, GA, Aug. 7, 1999 -- The Annual Meeting of the Section of Administrative Law and Regulatory Practice provided the setting for the first of several panels that will serve as forums for discussing the section=s Statement of Administrative Law Project -- a project designed to produce a descriptive statement of federal administrative law under the Administrative Procedure Act and a prescriptive statement of recommended revisions.

The Statement is expected to take two years to complete. It will be formatted to resemble the Restatements of Law published by the American Law Institute, and like the Restatements will rely substantially on the use of illustrations as a means of clarifying stated principles.

The chief reporter is Paul R. Verkuil, dean of the Benjamin N. Cardozo School of Law in New York. Dean Verkuil believes the time is ripe for such a project: AThe APA occupies a significant position in federal administrative procedure, but it is over 50 years old, and some of its centralizing functions have eroded.@

The project has been divided into five topical categories: adjudication, rulemaking, judicial review, information access and policy, and agency management/regulatory reform.

The first panel addressed adjudication. Other panels will address the remaining topics at future Section meetings.

The adjudication panel presented and discussed several draft papers circulated at the meeting and available on the Section=s website: http://www.abanet.org/adminlaw/apa/drafts.html

Michael R. Asimow, Professor of Law, UCLA School of Law, presented a paper on separation of functions and offered some general observations about the conventions he believes should be observed in preparing the Statement. For example, he advocates citing attorney-general opinions where there is no contrary case law and citing literature where case law is controversial.

Glen O. Robinson, David A. Harrison Professor of Law at the University of Virginia, presented a paper on adjudicatory hearings, co-authored by Charles H. Koch, Jr., Dudley Warner Woodbridge Professor of Law, College of William & Mary. Professor Robinson discussed, among other things, Mathews v. Eldridge, 424 U.S. 319 (1976), calling it a touchstone on procedures required by due process, and Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), describing it as Awrong@ but stating that the Statement will not so much criticize it as Aquestion@ it.

Phyllis E. Bernard, Professor of Law and Director, Center on Alternative Dispute Resolution, Oklahoma City University School of Law, presented a paper on AADR, Flexibility and the APA.@ Professor Bernard believes the APA needs to encourage flexibility when it comes to alternative dispute resolution while maintaining public accountability. She also believes the APA must address when ADR decisions should be binding and when and what kind of review should be available.

Jack M. Beermann, Professor of Law, Boston University School of Law, presented a paper on informal adjudication. Professor Beermann pointed out that although the APA pays little attention to this subject, A80-85% of what agencies do to affect the public is informal adjudication.@ Beermann believes the APA should prescribe minimum informal adjudication rights and procedures. He thinks most agencies already have procedures that probably would comply. Dean Verkuil closed the session by noting that adjudication would be addressed again at a future meeting and invited anyone interested in contributing to the project to contact Section staff.

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