by 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?
