Meet Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, at Georgetown University Law Center. Below, Prof. Heinzerling shares her experiences in administrative law and her thoughts on OIRA and federal agencies.
1. What led you to a career in law? How did you become interested in studying and teaching administrative law?
I studied philosophy in college, and I loved the close attention to language and the analytical care it required. I thought law would require similar capacities, but with a more focused attention on concrete problems.
2. What experiences with administrative or regulatory law have you had?
After my clerkships and a stint as a Skadden Fellow at a public interest group in Chicago, I worked for three years as an assistant attorney general in Massachusetts. I worked in the environmental protection division of the attorney general’s office, focusing on environmental law. When I came to Georgetown, I taught administrative/regulatory subjects like environmental law and natural resources law, then branched out to administrative law itself and to food and drug law. Through most of my time at Georgetown, I have been involved in various ways in litigation involving administrative/regulatory matters. I took a two-year leave of absence from Georgetown in 2009-10 to work at the U.S. EPA.
3. As someone who has written extensively about the federal agencies, what do you think is the greatest challenge facing agencies and advocates involved in assessing or creating regulations? Are there any “best practices” that attorneys involved in the process should follow?
One of the greatest challenges facing agencies and advocates today is that there are simply not enough agency resources to do all of the things that agencies are legally authorized and indeed required to do. Agencies aren’t terribly good at setting out their priorities in a way that maximizes their effectiveness, and advocates are, understandably, frustrated when agencies decline to take legally required action.
4. How would you characterize the relationships between the federal agencies and OIRA? Are there ways in which either OIRA or the agencies should change the way in which they communicate or otherwise interact with each other?
The relationships between the federal agencies and OIRA are challenging because the agencies are the entities charged by Congress with certain responsibilities and are structured to bring maximal expertise to bear in exercising those responsibilities. OIRA is not charged by Congress with implementing statutes (other than the Paperwork Reduction Act) and its expertise is narrower than that of the agencies.
5. At a more general level, what do you think has been the most significant impact that OIRA has had on how regulations are created or amended?
One of the most significant yet nonobvious effects of OIRA is to create uncertainty within agencies about whether their decisions will see the light of day. Rules can take years to develop, and yet they might not emerge from OIRA at all or might not emerge in a form anything like the one they had when they went to OIRA for review. The uncertainty created by the vagaries of the OIRA process is not great for agency staff morale and, I think, limits the creativity staff exercise even in the very first stages of developing rules.
6. For law students considering a career in administrative law, how would you suggest they learn about and explore the field? Are there courses in addition to administrative law that you think would be particularly useful for them?
Students should understand that “administrative law” is always practiced within the context of a particular problem being addressed by a particular agency. Beyond taking administrative law itself, students can best explore the field by taking subjects in specific regulatory areas, such as environmental law, securities regulation, food and drug law, etc.
7. Outside of the law, what are your favorite activities or hobbies?
Spending time with my family. I also like to run and to garden, although I don’t have any particular aptitude for either.
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.