Administrative Law Scholars’ Wild Ride, by Jon Michaels
This past week, the administrative law listserv—and a longer treatment, titled Fasten Your Seatbelts, The FTC Is About to Take Us on a Rollercoaster Ride, published on this blog—has had plenty to say about Chair Lina Khan and her stewardship of the FTC. What motivates me to write, however, is the surprising and surprisingly uncharitable way at least a sliver of the academic community near and dear to me has approached Khan the past few days. Khan certainly doesn’t need me to defend her. But I feel I owe it to my colleagues to question and challenge some of what I’ve been reading.
It began, as best I can tell, on Wednesday, in response to Amazon’s petition to compel the Chair’s recusal from serving as an investigator, prosecutor, or judge in matters involving the company. The fear is that the Chair’s scholarship (principally her student note), her work for Open Markets, and her staff work for the House Antitrust Subcommittee amount to evidence that she’s likely prejudged the antitrust case against Amazon. Quite a few commentators on the listserv, themselves seemingly content to prejudge (or at least quickly judge), the recusal case, seized on the Amazon petition to suggest that, indeed, Khan will be required to recuse herself. In a couple of instances, the comments cut deeper. Meanwhile, providing a quote for a story that day in the Washington Post, Professor Kovacic remarked: “For the target of the recusal motion, the motions are an unwanted distraction from the pursuit of the agency’s program.” Seemingly, Amazon managed to distract quite a few of us as well.
Attention on Thursday pivoted to that day’s FTC hearing. As captured by Professor Pierce on this blog, “the new 32-year-old Chair of the FTC took a long series of actions—each by a vote of 3 to 2—that dramatically expand the power of the FTC and of its Chair.” His thorough, if a bit breathless, encapsulation of what happened at the meeting was, for me at least, complicated by his apparent interest in Khan’s age and by the fact that the votes broke 3-2. Comments on the listserv at that time varied from predictions about how frequently this FTC will find itself in the DC Circuit’s crosshairs to cries that the Chair’s approach to economic analysis ought to prompt law schools to double down on our teaching of cost-benefit analysis and implying that Khan is uneducated in administrative law. (That latter commentator provided this link, which as best I can tell is some sort of guide for preparing students to work at firms.)
I have some reactions to these comments and conversations, and the editors of N&C were generous enough to allow me some space to reply. Let me start by saying I don’t know Chair Khan particularly well. I met her once or twice, and I admire her work. Let me also say that, on the merits, I welcome the positions the FTC adopted on Thursday. (And other than my Prime membership, and assorted purchases, I have no financial entanglement with Amazon—or any other firm for that matter.)
First, on the recusal issue, I recall that Chair Khan’s student note ruffled some feathers among antitrust scholars, some of whom cast aspersions on what they described as her unorthodox methodology. I will leave to the side the merits of whether the legal academy—and the profession—would benefit from new and different thinking, as that’s of course irrelevant to the question of prejudgment. And, likewise, you can decide for yourself whether you think the U.S. has been an effective and thoughtful antitrust regulator; and whether President Biden and a majority of United States Senators made a wise choice in nominating and confirming the Chair.
What I will focus on, instead, is what I read to be the seeming embrace or at least acceptance of fairly dusty and hardly dispositive caselaw on administrative recusals. At the very least, I would have expected some pushback on Amazon’s petition vis-à-vis Khan’s academic writing, if not from the legal community writ large than certainly from the narrower community of academics who know the scholarly enterprise is one in which ideas and judgments are never permanently fixed, let alone at the time one publishes her student note.
I concede there is more to the recusal petition than Khan’s note or her later Columbia Law Review article. For present purposes, I limit my remarks accordingly. Still, if nothing else, I interpret this particular challenge to Khan’s objectivity as an affront to the (our?) scholarly community. Any scholar who doesn’t revisit her past projects, findings, and analyses with some regularity isn’t doing her job. What’s more, scholarship is a fundamentally different project from advocacy, let alone paid advocacy. Perhaps some, maybe many, of us have lost sight of that based on how we choose to ply our trade. But I’m at a loss why we should assume, again focusing here solely on her academic work, that Khan’s mind is unalterably closed—and not push back hard on claims to the contrary (regardless whether you agree with what you, or Amazon, presume to be Khan’s positions). To be clear, I think academic writing is fair game when it comes to nominations and confirmation proceedings. I just don’t believe it warrants being treated as legal evidence of an already closed mind.
Second, turning to Thursday’s hearing and its aftermath, I’m not quite sure the relevance of Khan’s age. I assume there must be some relevance, though. An uncharitable reader might worry that references of that sort are intended to suggest the Chair’s incompetence, inexperience, or naivete—seemingly a very different concern from that of Amazon’s; the latter evidently views of Khan as someone who has been training for this imminent battle with the intensity of Rocky gunning for Ivan Drago.
I’m also not quite sure of the relevance of the fact that the “FTC took a series of actions—each by a vote to 3 to 2.” Surely someone many years Khan’s senior would be quite familiar with how often multimember commissions break 3 to 2—and also sensitive to how awfully, pathologically polarized life in Washington has become long before Khan emerged on the scene. (Indeed, one suspects Amazon is accustomed to counting votes; it’s no doubt of some relevance to a decision whether to petition for Khan’s or anyone else’s recusal. And folks are already doing similar vote counting with respect to Commissioner Chopra’s imminent departure.) Absent that inescapable context, what purpose does highlighting the vote serve?
Anyone is, of course, entitled to be content with the state of market regulation in the United States over the past several decades, the dexterity (or lack thereof) of the Commission, the contours of contemporary FTC and antitrust jurisprudence, and what Joey Fishkin and Dave Pozen have referred to as the present state of asymmetric hardball. But then, by all means, let’s talk about that. It is surely a virtue to apply neutral principles in our treatment of questions of law and policy. I’m perfectly willing to believe that’s what Professor Pierce was doing here. Indeed, his long record of scholarly integrity suggests he is owed nothing less. But I fear his (and our) important work is endangered when it is announced that (per the title of his blog post) we’re about to be “taken” on a “rollercoaster ride”—by a 32-year-old, no less—when, again, for anyone who has been paying attention, power accretion and partisan polarization of this sort across the administrative state are hardly new or unprecedented.
And for the commentator whom I understood to be suggesting that Lina Khan’s role as FTC Chair should prompt a wholesale revision to law school curricula, one cannot help but wonder what’s motivating such pre-Fourth of July fireworks on the usually sleepy (and customarily nuanced) listserv. We have an important appointment to an important commission at what at least I see as a critical moment for the American political economy. Obviously, there is still plenty of time to unpack what has transpired this week—and even more to study and comment on what may take place in the months and years to come. I look forward to those substantive conversations.
Jon Michaels is Professor of Law at UCLA School of Law.