Meet Jamie Conrad, Immediate Past Chair of the Administrative Law Section

by Nina Hart

Meet Jamie Conrad, the outgoing Section Chair.  Below, Jamie discusses his amazing legal career, tenure as the Chair of the Section of Administrative Law and Regulatory Practice, and offers advice for aspiring administrative lawyers. 

1.  Where do you work now and what led you to a career in law?

For the past six years, I’ve had my own solo law/lobbying/consulting practice, Conrad Law & Policy Counsel.  Before that I worked in-house for 14 years at a trade association (the American Chemistry Council).  Earlier, I spent about eight years at two major firms, Cleary, Gottlieb, Steen & Hamilton and Davis, Graham & Stubbs.

The only lawyer I knew growing up was my godfather, who was a partner in a major Pittsburgh firm.  But I admired him tremendously, and when I interviewed him in his office about his work (for a seventh-grade guidance class project), I thought, “I can see myself doing this.”  I toyed with being a research scientist, but a semester doing that put me off it.  It was great fun in many respects (living in Honolulu studying language comprehension in dolphins), but I’m just not personally suited to months and years of laborious data collection.  And seeing how nasty and political the journal peer-review process could be persuaded me that, if I were going to be slugging it out with people, I’d rather do it above board.  I have always cared about public policy issues, primarily energy and the environment, and it seemed to me that law was how those things were managed.  I spent a semester as a paralegal, and what I could discern about what the lawyers did really attracted me.  My first day as a law clerk after my first law school year clinched the deal: people were asking me what I thought the answers were to tough, practical problems – and paying me to figure them out.

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

I’ve worked in Washington, DC for my entire career, and almost all of it has involved regulation of some form or another.  As a paralegal, I was exposed to the SEC, FAA, DOE, FERC, EPA and ICC.  As a clerk, I also engaged with the Interior Department.  My work at Cleary was a mix of international trade (principally antidumping and countervailing duty cases), financial services (I was deeply involved in the multi-agency and Congressional negotiations that produced the Government Securities Act of 1986, and environmental (air, water and waste).  Davis Graham’s practice was the least regulatory, but I continued to do some EPA and FERC work.  These projects ran the gamut: ratemaking, enforcement, commenting on proposed rules and challenging new ones, and drafting legislation to authorize new rules.

Because ACC represents large companies in one of the most comprehensively regulated industries, I was privileged to get about as deeply involved as anyone outside the relevant agency in dozens of regulatory initiatives, particularly at EPA.  Much of these were traditional rulemakings, but a lot of my work was more programmatic, bridge-building stuff: doing cooperative projects to develop compliance assistance tools, helping formulate EPA’s audit and disclosure policy, figuring out how to manage the “regulation by information” quality of agencies’ use of the (then-new) Internet, and working through the consequences of 9/11 for critical infrastructures.

I do much of the same sort of work now.  Probably my principal niche is the use of science in regulation: when and how should agencies conduct peer reviews, how the scientific weight of the evidence should be determined, the roles industry science and scientists should be able to play, etc.  A lot of what I do is indirect advocacy – publishing in journals and speaking at conferences.

3.  How did you become interested in practicing administrative law?

From my first days as a paralegal, I was endlessly fascinated by the kinds of issues and activities that the government attempts to manage -- I marveled that the FAA was doing a rulemaking on “Mexican air taxis” -- and the complex net of laws, agencies and programs involved.  Also from the beginning, I have been inherently interested in all the unintended consequences, countervailing risks, and deep quandaries that any attempt at regulation presents.  The cases where the rules apply don’t interest me nearly as much as all the problematic cases that arise around the edges.  There are well-recognized benefits and pathologies with both simple sets of rules that generalize around or ignore these problems and Byzantine systems that try to identify and resolve them all.  When I was a kid I was interested in military aviation and spaceflight, but my favorite book was one that focused on how incredibly hard it was to figure out how to manage each advance.  I guess that perspective stuck with me.

Most of my work as a paralegal was on the administrative litigation that grew out of the 1970s oil price controls.  As someone who was philosophically inclined to support that sort of thing, I was struck by how incredibly difficult and ultimately futile that sort of thing is.

Also, while I think most regulation is necessary and I greatly respect the people who do it (particularly given their work environment), I have always been struck by the libertarian insight that the definition of government is the legitimized use of force.  Regulatory agencies have lots of incentives to expand the exercise of their authority and few incentives to self-limit.  They also have necessarily imperfect knowledge about the things they’re regulating.  So I’ve always felt that the system, to be just, also requires people like me who speak up, and, as necessary, push back, on behalf of the subjects of regulation.

4. Do you have any advice about “best practices” for attorneys who are preparing to handle administrative law cases or who are participating in the rulemaking process?

I haven’t done enough administrative adjudication to have any confidence in any advice I’d offer there.  In the rulemaking area, there are several good books on the topic.  I’d say the top-line messages for practitioners before agencies are:

• Never criticize anything without offering an alternative solution.  Congress gave the regulators a job to do, and you will be much more successful if you can propose a way that they can accomplish it.  Don’t play “bring me a rock.”  (“No, not that one.” “How about this one?”  “No, not that one either.”)
• You know more about your industry/client/etc. than the agency.  The most valuable thing you can do for an agency is to become a trusted source of useful information to the agency.  Staff will seek you out or at least listen. 
• Strive to really understand your clients’ businesses and push them for specific examples of how various regulatory alternatives will affect them – or the agency’s goals -- rather than repeating general complaints.  Then translate their jargon into words others can understand.

For agency lawyers, I suppose my principal piece of advice is that people in various businesses aren’t in those industries to do bad things, even though the ones you disproportionately encounter may be.  The great majority are just trying to make a useful product or service and make money in the process.  They generally accept the need for a certain amount of regulation, but they will bristle if they sense that you have the view that we should tolerate them grudgingly, or that they function at your sufferance.  They may not be your customer, but they shouldn’t have to feel like a supplicant, either, even if they are “applicant” or a “permittee.”

5. As someone who has done policy advocacy and more traditional litigation, do you have any advice for attorneys looking to transition between the two practice areas?  Is there a different skill or mindset that attorneys need to bring or develop in policy that may not be as crucial in litigation and vice versa?

At a more philosophical level, courts expect parties to be adverse and to zealously push the strongest arguments that pass Rule 11.  Courts appreciate this because they are referees.  Outside of the adjudicatory context, however, agencies are both the judge and the other side.  So it’s generally advisable to adopt a more nuanced and cooperative view.  You’re really more a negotiator than a litigator most of the time.

At a stylistic level, you have to think carefully about who your audience is.  Rarely will it only be exclusively lawyers.  So except in those rare cases, you generally have to write in plain English.  For major or multifaceted documents, you may have to write different things in different ways.  Where you’re making legal arguments, you have to write legalistically.  When you’re writing policy arguments, you need a different tone and approach.

“Gotcha” legal arguments will rarely succeed, unless they are so open-and-shut that the agency sees it really has no other alternative.  But even then agencies frequently will roll the dice and push ahead, gambling that the issue will ultimately never be litigated or that the judge won’t want to upset the entire rulemaking applecart on the basis of one issue.  Even here, your tone should not be as “I’ve got you” as would be customary for a brief.

Use executive summaries and send copies of your submissions directly to key decisionmakers, not just to the docket.

6.  What do you think are the biggest challenges facing administrative law practitioners? How could the Section assist attorneys with these challenges?

The biggest challenge facing administrative practitioners is that they have to learn two sets of law:  the substantive law of whatever field(s) they are in, and the generic procedural law that applies (unless supplanted by more specific law) to all federal administration.  The latter is harder to learn by doing, in part because it evolves across multiple fields.  So the Section concentrates on publishing the leading volumes on the full range of ad law topics, updated fairly frequently, and on presenting programs that describe and analyze new developments and complicated fields.  Our Fall Conference is two days of multiple tracks of programming, plus plenary session speakers on developments in adjudication, rulemaking, constitutional law and judicial review.  These developments are also written up in our annual Developments book, which Section members get for free.

Another less obvious benefit we offer is a way to get to know other regulators, practitioners and academics in your fields and others.  That network of contacts can be invaluable in addressing and resolving problems – and learning of opportunities – that emerge months and years later.

7.  As Chair of the Section, what were your priorities or goals for the Section this year?  Are there any particular long-term goals you hope the Section will be able to achieve in the coming years?

My main goals, from grand to ministerial, were:

• To help implement the ABA’s policy on using independent commissions to redistrict;
• Generally to have an impact on policymaking;
• To have the Section function at least as well as it has in the past; i.e., to uphold the proud traditions of the Section and the accomplishments of prior chairs; andTo make sure that the “Policy” page on our website contained a list, with links, to all ABA policy that originated from the Section.

I was largely unsuccessful in my first goal.  The Uniform Law Commissioners passed on the issue as too political.  Moreover, the problem has to be resolved by state legislatures, state-by-state, and requires on ongoing network in any given state.  Also, only the ABA President can speak on behalf of the ABA, and the institution tries to focus its pronouncements on a small list of priority issues.  But I was able to highlight election law issues generally, and that work should help support the efforts this year of President Silkenat’s Election Law Initiative.

I was more successful in getting out blanket authority letters (where the Section speaks on its own behalf) opposing aspects of the STOCK Act, encouraging OIRA to issue the semiannual regulatory agenda promptly, and supporting legislation to require regulations to be written in plain language.  We won on the STOCK Act, we were well-received by OIRA (which has done better this year), which is now interested in the idea of an online agenda updated monthly, and several of our suggestions were incorporated in plain language legislation introduced in this Congress.

And our great staff did update the Policy page – take a look.

We have a huge field of opportunities now:

• Urging Congress to enact S. 791, the Follow the Money Act of 2013 (Wyden/Murkowski), which would implement 2013 ABA policy (originated by our Section) on disclosure of political contributions to organizations;
• Finding members of Congress to introduce legislation to implement the 2011 ABA resolution based on the work of the Lobbying Reform Task Force (again, a Section creation);
• Issuing blanket authority letters on pending legislation to amend the APA (e.g., S. 1029) – a process that has begun -- and to require a regularly updated regulatory agenda (H.R. 2804) (this process has not yet started);
• Working with the Business Law and Labor & Employment Law Sections to discuss whether the ABA should revisit its policy on OIRA oversight of rulemaking by independent regulatory agencies;
• Supporting President Silkenat’s Election Law Initiative;
• Following and possibly promoting the work of President Obama’s Commission on Election Administration; and
• Sponsoring a panel, like the Lobbying Reform Task Force, to recommend improvements in FOIA administration.

If folks reading this blog care about any of these issues, the door is open for you to step up and help lead them.

8.  What advice might you give to lawyers or law students interested in being more involved with the Section?  Perhaps you could explain how and why you became involved with the ABA and this Section.

I joined the ABA right out of law school because I assumed everyone did, and I joined SEER because I assumed anyone purporting to be a cutting-edge environmental lawyer (as I aspired to be) had to belong in order to keep up with developments and to know the leaders in the field.  I joined Ad Law about 13 years ago because I was increasingly finding that ad law was what I really did all day.  It’s a smaller pond and thus an easier group in which to organize panels and be given leadership roles.  One of my first acts was to co-author a report and resolution on agencies’ responsibilities for the accuracy of information they disseminate on the Internet, which the Section passed and the House of Delegates adopted as ABA policy.  That got me introduced to dozens of Section leaders and I just proceeded from there, mainly by agreeing to do things people asked me to do.  

The key to involvement is to take on some responsibility and then follow through.  You’ll be proud, people will come to know and like you, and you’ll get to do more.  I can’t overemphasize how the opportunities are simply sitting there waiting for folks who want to take them on and who have halfway-decent skills in working with other volunteers.

9.  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?

I don’t think there is any substitute for just starting to work in an area.  Ad law is particularly abstract and formal until you see it in operation, I suppose in much the same way civil procedure is.  Working in multiple fields is also a great way of seeing how various concepts and doctrines work out in different ways.  The government, DC firms with big regulatory practices, and trade associations are all good ways to get this sort of experience.

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

We travel a lot, mainly “ecotourism”; I think sometimes I work to pay for our trips (e.g., Tanzania next January).  I’m a good harmonica player for an amateur (I just appeared on my first CD), a decent choral singer (bass), a fairly active cyclist, and a self-taught birder.  Some day I want to go back to drawing and painting.  I’m afraid I probably do too many things to do any of them particularly well, but I have a lot of fun.