Notice & Comment

Administrative Law Without Courts

This Friday the Florida State University College of Law is hosting a terrific conference entitled Environmental Law Without Courts. The conference builds on the law school’s prior conference on environmental law without Congress.

As the conference website explains, “[t]his conference will bring together prominent environmental and administrative law scholars from across the country, and explore different ways in which administrative agencies have implemented environmental policies largely without court supervision or intervention.” The papers from this symposium will be published in the Journal of Land Use & Environmental Law. Here’s the full schedule for the symposium:

Eric Biber, Professor of Law, University of California Berkeley School of Law: The “Leave it in the Ground” Movement
Comments: Shi-Ling Hsu, D’Alemberte Professor and Associate Dean for Environmental Programs, Florida State University College of Law

Sarah Light, Assistant Professor of Legal Studies and Business Ethics, University of Pennsylvania, The Wharton School of Business: The Military-Environmental Complex as Environmental Law Without Courts
Comments: Arden Rowell, Professor and University Scholar, University of Illinois College of Law

Christopher Walker, Associate Professor of Law, The Ohio State University Moritz College of Law: Lawmaking Within Federal Agencies and Without Judicial Review
Comments: Arden Rowell

Robin Craig, William H. Leary Professor of Law, University of Utah S.J. Quinney College of Law: Fisheries Management: What Gets Challenged and What Doesn’t
Comments: Erin Ryan, Elizabeth C. and Clyde W. Atkinson Professor of Law, Florida State University College of Law

Robert Glicksman, J.B. and Maurice Shapiro Professor of Environmental Law and Emily Hammond, Associate Dean for Public Engagement and Professor of Law: Agency Behavior and Discretion on Remand
Comments: Mark Seidenfeld, Patricia A. Dore Professor of Administrative Law, Florida State University College of Law

Sharon Jacobs, Associate Professor of Law, University of Colorado Law School: Agency Innovation in Vermont Yankee’s White Space
Comments: Mark Seidenfeld


My contribution, tentatively titled Lawmaking Within Federal Agencies and Without Judicial Review, will draw on my prior empirical studies on agency statutory interpretation and agency legislative drafting. Here’s a quick summary of the project:

Federal agencies play a substantial role in drafting the legislation that empowers them to regulate and then typically have broad discretion within that congressional delegated authority to choose how to regulate. The former fully escapes judicial review, and the agency choices made in the latter are usually only reviewed by courts for reasonableness. In other words, a vast amount of agency lawmaking escapes judicial review, which suggests that it is all the more important to understand the key players within the agency that engage in these legislative and regulatory activities.

Drawing on prior empirical work for the Administrative Conference of the United States and elsewhere, this Essay aims to bring some clarity to these issues by describing the processes and agency officials involved in technical assistance in legislative drafting and rulemaking. It turns out that agency general counsel offices, along with program and policy experts, play a critical in both activities. Yet not all agency general counsel offices are organized the same to coordinate these activities. In particular, the Department of Energy is an outlier in that the general counsel’s office combines its legislative and regulatory counsel in one division, where attorneys cross-train and work on both legislative drafting and rulemaking. Most agencies, by contrast, have separate legal divisions for legislative and regulatory matters. These institutional design decisions have important implications for agency lawmaking. This Essay will argue that the combined legislation and regulation office has the virtue of ensuring that those agency officials who help draft the legislation can fully leverage the agency’s experience and expertise in implementing the legislation, and vice versa. The Essay will conclude by noting a number of best practices for agency general counsel offices to consider short of consolidating legislative and regulatory counsel in one office.

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