Since the days of Felix Frankfurter, the Administrative Law course has been a staple of American law schools. It’s a great course, but it’s limited. The same is true of most of the courses on legislation and regulation in the first year, which also focus on how courts interpret statutes and how they review administrative actions. But a student could emerge from these courses with an A+, yet without understanding the reasons for regulations to exist or how to argue before an administrative agency. They also wouldn’t learn much about the compliance process, which may well be the stage where lawyers are most active. They may learn about the existence of OIRA (the White House office that reviews agency actions), but not about how cost-benefit analysis really works. Yet as regulatory lawyers, that’s something they really need to understand.
There’s an effort underway to get the American Association of Law Schools to sponsor a study of how to improve this situation. The effort comes from what many would consider a conservative source, but there’s no reason to consider this an ideological issues. If anything, liberals who favor more regulation should be even more interested in making sure that our students learn how to make economic arguments, how to argue before agencies, and how to make sure that businesses comply. I’ve always told my environmental law students that, whatever they think of cost-benefit analysis, they need to understand it well enough to critique anti-regulatory arguments.
Ideally, every law school should have a course on regulatory policy and economics, another course on compliance, and a clinic that represents clients before agencies. Not many law schools have all these courses — certainly not Berkeley. As an alternative, it would be great to see more of these issues mainstreamed into the administrative law course or into the increasing number of 1L offerings on legislation and regulation. And yes, it would be nice if the AALS were to take some initiative in thinking about how to make this work.
I asked Jim Tozzi, the sponsor of this proposal by the Center for Regulatory Effectiveness (CRE), if he had anything to add. Here’s his response:
Professor Farber’s article is in class all its own. In a very cogent manner it makes the case for modifying law school curricula in order to make them responsive to the changing demands on attorneys. In an eloquent sway of the pen he describes the reasons why the issue is relevant to the entire political spectrum.
The next challenge is to have the change occur. It should be noted that the proposal CRE submitted to the AALS is not a new idea; there are a substantial number of attorneys who have been making the identical point for years. However these occurrences are a “bottoms-up” approach based upon the work of individual professors. What is needed is an effort by established institutions, a “tops-down” approach, to complement the initiative taken by individual professors.
It is for this reason that CRE has requested the intervention of the ABA Accreditation Committee to take a forceful action to move the ball forward. On the other hand changing the internal procedures of the AALS or the ABA may be more difficult than changing the internal procedures of the US government which lead to centralized regulatory review. A potential game changer is if the members of the two aforementioned organizations take an action similar to that of Professor Farber.
Although I am unsure what this enhanced curriculum would look like, I definitely agree with Farber and Tozzi that there’s a need for reform and that a study by the AALS might well advance the ball. It’s also refreshing to see regulatory scholars and practitioners on the left and right agree on something.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.