Friday, December 19, 2014

Meet Nina Mendelson, Professor of Law at University of Michigan Law School

Professorby Nina Hart

Meet Nina Mendelson, the Joseph L. Sax Collegiate Professor of Law at the University of Michigan Law School.  Below, Prof. Mendelson discusses her diverse experiences with administrative law, and shares her thoughts about challenges facing both attorneys and agencies.

1.  What led you to a career in law?  How did you become interested in studying and teaching administrative law?

Since high school, I had thought about law.  I was impressed by civil rights lawyers and, closer to home, a grandfather who was known for criminal defense work.  I was drawn to the idea of seeking, with integrity, justice and fair treatment for individuals.  Then, in college, where I studied political science, history, and economics, I became intrigued by another side of the law.  It is in the design and application of legal rules that we realize our ideas of how a good society should function.   That sealed it; I was headed to law school.

Administrative law is another story.  At Yale Law School, I was very lucky to have the opportunity to study administrative law with Professor Jerry Mashaw, a true giant of the field.  But I did not fully appreciate the field’s importance until I spent a few years in government, at the Department of Justice Environment and Natural Resources Division, prior to entering teaching.  I worked on a variety of environmental issues in a small policy and special litigation section.  There I was privileged both to work with many talented individuals and to get an inside view of agency function and the dynamics among executive branch agencies.  I continue to emphasize to my students just how much of modern governance takes place in agencies.  It is accordingly critical to understand the processes by which the administrative state creates law and policy and the legal framework that constrains it.

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

Besides my past environmental law practice, both at Justice and at a large private firm, as well as occasional pro bono work here in Michigan, I have been fortunate to serve on the Section’s Council and to serve as a public member of the Administrative Conference of the United States.  I also serve as a research fellow for a think tank, the Center for Progressive Reform.  Spending time in all these institutions has given me wonderful opportunities to learn from others and to consider what is working and what might be reformed in the administrative state.   Finally, in my over 15 years of teaching administrative law here at Michigan, I have enjoyed discussing administrative law issues with my students, and I always appreciate hearing their fresh perspectives. 

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?

It’s hard to pick one single “greatest challenge,” but there are two issues involving the general public and regulation that I think deserve more sustained attention.  One is what to do with the thousands and thousands of rulemaking comments that ordinary citizens are filing.  This is happening more frequently because e-rulemaking makes comments easier to file.  Moreover, this Administration has taken a strong stance in favor of transparency and public engagement, beyond simply voting in elections.  Comments numbered in the millions for the FCC’s net neutrality rulemaking this past summer, and they often are in the hundreds of thousands for important rules from EPA and other agencies.  As others have pointed out, these comments often amount to an expression of preference, rather than directly engaging the regulatory issues in detail, and they surely range in quality.  But agencies’ failure even to acknowledge them may increase already significant levels of public cynicism about ordinary citizens’ role in government. 

The other issue concerns public access to agency rules.  Federal agencies have elected to use thousands of privately written standards in lieu of drafting their own rules on issues ranging from oil pipeline operation and product safety to occupational safety.  These rules cannot be readily accessed in either the Federal Register or the Code of Federal Regulations, as with the rest of agency rules.  They are often referred to as “incorporated by reference” or “IBR” rules, a reference to agency practice in referencing the rules as binding in the CFR without including their text.  They’re reliably publicly available only by physically visiting the Office of the Federal Register.  Otherwise, individuals must obtain the rule from the private drafting organization, often for quite a significant fee.  Meanwhile, pipeline neighbors, consumers, and employees are typically less able to afford these standards than many companies who must comply with them.  The Section has taken a position on this issue that Jamie Conrad, Professor Peter Strauss, and I helped draft.   The United States has a long tradition of high levels of public access to the law’s text, and the discussion over public access to IBR rules has yet to properly engage the public’s interest in being able to read them.

4.  As someone who has worked in both the public and private sectors, do you have any advice for attorneys looking to transition between the two areas?  Is there a different skill or mindset that attorneys need to bring to or develop for government work that may not be as crucial in a more traditional litigation practice and vice versa?

I don’t think the skill set required is any different.  Whether an attorney is working in government or in the private sector, he or she must be prepared to employ meticulous research and analysis and innovative thinking, along with integrity in the use of sources and the representation of clients.   Of course, a client’s concerns and needs may be different in the two settings, but in both cases, attorneys should be prepared to do their work to the highest standards.  Attorneys must also be able to consider legal issues both at the narrowest level of what the law, today, requires, and at the broader level of how the law functions and the policies it serves.  

5.  For law students or new attorneys considering a career in administrative law, what do you think would be a good way of familiarizing themselves with the field?

Of course, students should take Administrative Law!  Beyond that, students and new lawyers might explore the issues of the field in the context of a specific area of interest, whether it is immigration, environmental law, benefits programs, or consumer safety.  The importance of administrative law principles can be easier to appreciate by seeing how they impact people and institutions in a particular substantive area.   A federal agency internship also would provide an excellent chance to explore administrative law issues.  All this would give someone a great start.  I would also particularly recommend that new lawyers and students attend the Section’s fall and spring administrative law conferences.  They are a great way to learn about cutting-edge administrative law issues.  Finally, I would say that even for those of us who have long been in the field, new issues are constantly arising, so we are never done becoming “familiar” with administrative law.  

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

I spend a lot of time with my family; I have two very active teenagers, so there’s usually a lacrosse game, cross country meet, or band concert to enjoy.  When possible, I also like to be in the beautiful outdoors hiking or canoeing. 

Monday, December 15, 2014

NSF Seeks Input on Collection of Information for “Large Facilities Manual”

by Shannon Allen

The National Science Foundation (“NSF”) seeks input on the proposed collection of information for a “Large Facilities Manual.”  The NSF intends to administer this information collection for a period of three years.  The NSF’s mission and purpose is “To promote the progress of science; to advance the national health, prosperity, and welfare; to secure the national defense. . . .” (The National Science Foundation Act of 1950 (Pub. L. 81-507) (“The Act”)).  The Act directs and permits the NSF to start and maintain: basic scientific research and research fundamental to the engineering process; programs to strengthen scientific and engineering research potential; science and engineering education programs at all levels and in all the various fields of science and engineering; programs that provide a source of information for policy formulation; and other activities to promote these ends.

The NSF provides the academic community with advanced instrumentation needed to conduct state-of-the-art research and to educate the next generation of scientists, engineers and technical workers.”  The NSF ensures that these communities have “access to these resources, and to provide the support needed to utilize them optimally, and implement timely upgrades.”  One of NSF’s major responsibilities is to support facilities which are an essential part of the science and engineering enterprise. Facilities are defined as shared-use infrastructure, instrumentation and equipment that are accessible to a broad community of researchers and/or educators. The NSF awards universities, consortia of universities or non-profit organizations” to construct, manage, and operate facilities and NSF oversees this development management and performance.

The Large Facilities Manual is intended to: provide step-by-step guidance for NSF staff and awardees to carry out effective project planning, management and oversight of large facilities while considering the varying requirements of a diverse portfolio; clearly state the policies, processes and procedures pertinent at each stage of a facility's life cycle from development through construction, operations, and termination; and document and disseminate “best practices” identified over time so that NSF and awardees can carry out their responsibilities more effectively.

The proposed collection of information will include the submission of proposals and subsequent project documentation . . . related to the development, construction and operations of Large Facilities.  The NSF will balance its oversight on facilities development and construction against monitoring its information collection in order to address reporting burdens.  The NSF invites the public to specifically comment on:

  • whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information shall have practical utility; 
  • the accuracy of the Agency's estimate of the burden of the proposed collection of information; 
  • ways to enhance the quality, utility, and clarity of the information on respondents, including through the use of automated collection techniques or other forms of information technology; and 
  • ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

Interested parties should submit written comments by January 6, 2015, addressed to:

  • Suzanne Plimpton, Reports Clearance Officer, National Science Foundation, 4201 Wilson Blvd., Rm. 1265, Arlington, VA 22230, OR 
  • by email to:

Friday, November 21, 2014

DOL Proposes Drug Testing for Unemployme​nt Compensati​on Applicants

by Shannon Allen

The Employment and Training Administration (“ETA”) of the U.S. Department of Labor (“Department”), proposed a controversial new rule for the Federal-State Unemployment Compensation Program.  The purpose of the proposed regulation (§ 620.1) is to implement section 303(l)(A)(ii), Social Security Act (“SSA”), permitting the drug testing of Unemployment Compensation (“UC”) applicants for the use of controlled substances where suitable work (as defined under the State's UC law) is only available in an occupation for which drug testing is regularly conducted.

These proposed rules would implement the Middle Class Tax Relief and Job Creation Act of 2012 (“the Act”) amendments to the SSA and allow States to enact legislation that would permit State Unemployment Insurance (“UI”) agencies to conduct drug testing on UC applicants for whom suitable work is only available in an occupation that regularly conducts drug testing.  Under these situations, States may deny UC to an applicant who tests positive for drug use.  These two explicit situations are:

  • Where the applicant was terminated from employment with the applicant's most recent employer because of the unlawful use of a controlled substance. (Section 303(l)(1)(A)(i), SSA.); or 
  • Where the only available suitable work for an individual is in an occupation that regularly conducts drug testing.

For State UI program purposes, the Department’s Notice of proposed rulemaking (“NPRM”) seeks to define and regulate occupations that regularly conduct drug testing.

The Department asserts that the proposed regulations: will impact a very limited number of applicants for unemployment compensation benefits; do not have a substantial direct effect on the States or the relationship between the National Government and the States because drug testing authorized by the regulation is voluntary on the part of the State, not required; and do not adversely impact family well-being as discussed under section 654 of the Treasury and General Government Appropriations Act of 1999.

The Department seeks comment on the proposed regulations and specifically encourages comments on methods to refresh the list of occupations that regularly drug test. Comments must be submitted in writing on or before December 8, 2014.  Interested parties may submit comments, identified by Regulatory Information Number (RIN) 1205-AB63, by only one of the following methods:

  • Federal e-Rulemaking Portal: Follow the Web site instructions for submitting comments; OR 
  • Mail and hand delivery/courier: Written comments, disk, and CD-ROM submissions may be mailed to Adele Gagliardi, Administrator, Office of Policy Development and Research, U.S. Department of Labor, 200 Constitution Avenue NW., Room N-5641, Washington, DC 20210.

Friday, November 7, 2014

DOJ Proposes Rule to Aid Hearing or Vision Impaired Moviegoers

by Elisabeth Ulmer

The Department of Justice (“DOJ”) seeks comment on a notice of proposed rulemaking (NPRM) to amend Title III of the Americans with Disabilities Act of 1990 (“ADA”) with respect to the exhibition of movies with closed captioning and audio description.  First, this regulation would explicitly require theaters to exhibit such movies “at all times and for all showings” whenever a version with these features has been produced.  Second, the regulation would require theaters to “have a certain number of individual closed captioning and audio description devices” available for people with hearing or vision limitations.  The DOJ is considering a six-month compliance date for digital movie screens and a four-year compliance date for analog (film) movie screens.

Title III of the ADA guarantees effective communication for persons with disabilities.  Covered entities, such as movie theaters, must take “such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently…because of the absence of auxiliary aids and services,” unless these entities demonstrate a fundamental alteration or undue burden. 42 U.S.C. 12182(b)(2)(A)(iii).  Under the ADA, this obligation should be met across the United States, but although a large number of motion pictures from the major domestic movie studios include closed captioning and audio description, in some jurisdictions these versions are not made available.

The DOJ has observed that people who are deaf or hard of hearing or blind or have low vision accordingly “still cannot fully take part in movie-going outings with family or friends” and are deprived “of the opportunity to meaningfully participate in an important aspect of American culture.”  Moreover, Americans with limited hearing or vision “represent an ever-increasing proportion of the population.”  Given the current shift from analog to digital cinema systems, showing movies with closed captioning and audio description is also now both easier and less expensive.  For all of these reasons, the DOJ believes that its proposed amendments are “necessary in order to achieve the goals and promise of the ADA.”

Under the proposed regulation, if a movie has been produced and distributed with closed captioning and audio description, theaters must procure and show this version.  Theaters will not be obligated to create their own captioning or audio descriptions and thus may show movies that have not been produced with these features.  The proposed regulation also would require theaters to have a certain number of individual captioning devices and audio description devices available upon request.  This number will be ”based upon the number of seats in the movie theater itself and can be shared among the screens in the theater,” and theater staff must be capable of operating these devices and instructing patrons on their use.  Finally, theaters should provide notice as to which movies are available with captions and audio description.

The DOJ particularly seeks comment on the following two options regarding analog movie screens. Option 1 would be to adopt a four-year compliance date, which would allow theaters with analog screens “to obtain the necessary resources to purchase the equipment to provide closed captioning and audio description.”  Alternatively, under Option 2, the DOJ would postpone applying the requirements of its proposed regulation to theaters with analog screens because the nature of analogs is fluctuating with the shift from analog to digital cinema systems.

All comments are due on December 1, 2014.  Interested parties are invited to submit comments by any of the following methods:

  • Online Filing: ( Docket ID: DOJ-CRT-126) 
  • Mail: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 2885, Fairfax, VA 22031-0885 
  • Overnight, courier, or hand delivery: Disability Rights Section, Civil Rights Division, U.S. Department of Justice, 1425 New York Avenue NW., Suite 4039, Washington, DC 20005

All comments should be identified as RIN 1190-AA63.