Notice & Comment

Meet Kevin J. Schmitt, Law Student at UC Hastings College of the Law, by Nina Hart

Kevin J. Schmitt is a third-year law student at UC Hastings College of the Law. He is currently a Senior Articles Editor for the Hastings Law Journal and periodic contributor to the Yahoo! Contributor Network and Notice and Comment.  Below, Kevin shares his career aspirations and views on challenges facing administrative law practitioners.

1.      Where do you attend law school? What led you to attend law school? What are your plans for after law school?

I’m currently finishing my third year at the University of California, Hastings College of the Law. I wanted to go into law because of my combined fascination with government processes, policy and politics, and philosophy. Law, as a profession, seemed the best mixture of all of these. I’m also very interested in the nature of liberty and power structures and have always seen law as a way to understand how these concepts interact within a republican framework.

My plan is to start a career in some level of government. For most of my law school career, I focused on pursuing a career with a legislature or a federal or state agency. In the last two years or so, my studies led me to focus on state issues, and so I had planned to find a job with California’s Legislature or its Legislative Counsel Bureau. Recently, I cast my net a bit wider, and am looking into some exciting opportunities in the worlds of private practice, local government, and the court system.

2.      What interested you in administrative law?

As a political science undergrad, I wrote my honors thesis on presidential-congressional relations. In the course of my research, I ran into this unknown (to me) bit of legislation called the Administrative Procedure Act. As I delved deeper, I learned more about the process, including the role of OIRA, and saw how integral the administrative process is to American government. I found this to be fascinating stuff. At the time, it was also pretty shocking to learn how central administrative agencies are in the whole system. I’m sure I was pretty scandalized at first.

As I learned more about the rulemaking process and some of the policy rationale behind it, as well as the philosophy of Max Weber on which our whole bureaucratic system is based, I came to have a greater understanding and appreciation for the role of the administrative state. I’m really just continuing down that course of study now, applying the lessons I’ve learned from law school to some of these more policy-oriented thoughts. It’s been an interesting and rewarding intellectual process.

3.      What experiences with administrative or regulatory law have you had?

Probably my main interaction, outside of academic classes, was a seminar course that involved performing legal and policy research for a state agency. It was a great chance to work with top-tier attorneys on a cutting edge legal issue. My work involved the interplay of federalism and a major piece of federal legislation, so I was able to learn a lot about how both the state agency and its federal counterparts operated in regards to the issue. In addition to this, I was exposed to the administrative process when I interned for an Assembly Member who chaired an administrative oversight committee.

4.      Based on your experiences thus far, what do you perceive to be challenges facing administrative law practitioners?

On a theoretical level, I think administrative law attorneys, at least those on the “outside,” need to keep in mind the balance between being an advocate for the client and building a partnership with the agency at the same time. Sometimes the latter approach will better serve the client’s interests. Most lawyers know how to be persuasive in an adversarial setting, but it seems like only a certain set know how to apply those skills in a more collaborative setting.

For those on the inside (or hoping to be!), there seem to be a whole range of issues. Some are purely structural – for instance, balancing the agency’s regulatory goal against what is permissible – but the economy is doing us no favors. Assuming that sequestration is going to hit, and now that budget cutting is the favored policy tool du jour, we’re going to have to figure out how to do more with less. In one recent article on the sequester, I recall that a DOJ attorney complained that he would still have to do the same amount of work, but thanks to mandatory furloughs he had one less day to do it all. It was a sobering reminder that the work of governing will still have to be done, and the demands on federal and state agencies are not going to lessen simply because there’s not as much money available to them anymore.

5.      For law students considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field? Are there any courses, other than Administrative Law, that you consider especially useful?

Take a course on legislation. It’s important to understand the politics of administrative law and to be able to keep an eye on bills that may affect your work. Also, since agencies are active in seeking to influence legislative action, it helps to know the process in order to understand how to accomplish your goal.

I’d also highly recommend a course of legislative and/or regulatory drafting. When I was interning for the Legislature, I had the chance to work on some of my Member’s proposed legislation, and I found it to be one of the most challenging forms of legal writing I’ve ever encountered. There’s a definite trick to being able to say a lot in few words and do so in a way that is comprehensible.

I think it can be useful to take a class in a field of interest, particularly if it’s one dominated by a particular agency. You would be remiss, for instance, to pass up a labor law course if you’re at all interested in the NLRB, because you get a more intimate understanding of how that agency operates than you will from a general administrative law course. If possible, I’d also try to get a summer job at one of these agencies, especially if you’re more interested in the adjudicative function of the agency.

Also, I had someone recently recommend taking an elections law course in conjunction with administrative law. The implication was that understanding elections law will give you a better handle on how the political appointees in the agency operate vis-à-vis the career staff. As I’m almost done with third year, I won’t be able to do this, but it sounds like an intriguing idea.

6.      From a law student’s perspective, how do you think a meaningful dialogue between practitioners and academics might be achieved? What are some of the “disconnects” or assumptions that each group might make and that need to be addressed?

I remember a story from when I was researching my undergraduate thesis. I was in D.C. as part of a semester abroad program and had managed to interview with a prominent congressional scholar. This particular scholar was fairly critical of the shift of power away from the legislative branch and towards the executive. In part, he blamed this on law schools, particularly the case method, arguing they failed to inculcate respect for the legislative institution among lawyers. I remember very clearly that he said that the case method was “the easy way to teach law, but a stupid way.”

I don’t wholeheartedly endorse this criticism, but I think it raises a fair point. In my work experiences so far, legislation and regulation don’t receive sufficient emphasis in the law school curriculum and, as a result, in legal scholarship overall. In my experience, a statute or agency rule is likely to be more important to a client than a court case. There’s also not nearly enough focus on policy considerations in court cases, partly because courts often feel like these issues are beyond their purview. I think practitioners understand the connection between law and policy, and I’d like to see that trickle into the classroom.

Schools needs to strive for better balance between the case method and emphasizing the political origins of law, and I’ve already seen some encouraging signs. At Hastings, for example, we’re required to take a first year course on statutory interpretation. Similarly, there are all manner of clinics and externship programs that allow law students to get into the field and get practical experience. In one of my current classes, we’ll often pause for a moment while reading a case and try to tease out why the legislative body or regulatory agency adopted the position it did.

My favorite parts of law school have been those where I had the chance to do real work – doing legal and policy research for an Assembly Member, analyzing a critical new development for a state agency, or drafting a memo or judgment for a judge. But I’ve also really appreciated getting into theoretical issues in the course of taking classes and seminars, and in all honesty I don’t think I would have been adequately prepared for my practical experiences without that background.

In short, there should be a better effort at blending. I know there’s been some talk around the country recently about providing students with more practical training on top of traditional law school courses. I think that sounds like a great idea and I hope more state bars take that approach.

7.      Outside of the law, what are your favorite activities or hobbies?

I tend to do a lot of reading (mostly nonfiction, but a good novel is fun from time to time). When I can, I write short pieces for the Yahoo! Contributor Network, although for the last few months I’ve turned my attention to my final semester and haven’t submitted anything. Most of these pieces are on legal or political topics that interest me. Beyond that, I enjoy playing, and occasionally recording, music.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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