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?