Meet Renée Landers, Law Professor and Section Vice Chair

Meet Renée Landers, Professor at Suffolk University Law School and Vice Chair for the ABA Section of Administrative Law & Regulatory Practice.  Below, Prof. Landers shares her diverse experiences with administrative law and insights for practitioners and students alike.

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

Except for three years when my father was stationed in Germany with the U.S. Army, and my family lived there, I grew up in Springfield, Illinois.  Our house was eight blocks from Abraham Lincoln’s home.  As a result, Lincoln’s story and his legal career always held my interest.  In addition, as Springfield is the state capital, the process of lawmaking and politics was an everyday feature of life.  I was hooked at an early age.  Law school seemed like a natural ambition for someone with these interests.

In college, I studied government, and then took a position in the State Bookstore Division of the Office of the Massachusetts Secretary of the Commonwealth.  That Division, along with the Rules and Regulations Division, published and sold copies of Massachusetts regulations and other publications.  Everyone came into the Bookstore—plumbers, nurses, electricians, doctors moving into the state, aestheticians, architects, funeral directors.  After the Bookstore, I served as the Chief Administrative Assistant to the Secretary of the Commonwealth, then in two different Deputy Secretary positions—the Public Records Bureau, which administers the Massachusetts public records law, and the Corporations Bureau, which manages corporate filings and securities regulation.  All the material I studied on public administration in college started to make sense.  So, after five years in that office, when I finally went to law school, I wanted to build on what I already had learned about the administrative process.  Administrative Law is the perfect field for someone interested in the political process, government, and law.

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

After law school, I clerked for the then Chief Justice of the Massachusetts Supreme Judicial Court and the docket certainly included review of administrative agency decisions.  I joined a firm with a substantial health law practice, which involves a great deal of administrative law relating to state regulatory issues, as well as matters concerning the Medicare and Medicaid programs.  Even as a summer associate with the firm, I had worked on briefing for an appeal of a major determination of need matter before a state agency.  Subsequently, I left private practice to teach at Boston College Law School and taught administrative law, health law, and constitutional law, which remain in my teaching portfolio today.  After teaching at BCLS for a few years, I worked in the Clinton Administration, first in the Office of Policy Development in the U.S. Department of Justice, and then as Deputy General Counsel of the Department of Health and Human Services.  Both positions involved dealing with a wide variety of administrative law and policy issues.  While at HHS, I was involved in some early work that led to the development of the HIPAA Health Information Privacy regulations and that became a major area of focus for private practitioners and their clients after the rules were promulgated.  After leaving the government, I returned to my former firm, and rejoined the health law practice.

3.  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 have tremendous admiration for career government lawyers who are able to adapt to changing administrations and shifting priorities.  The ability to serve the institutional interests of the government through changing administrations is a temperamental attribute that serves the public well.  In some ways, this ability to adapt is similar to the skill that the lawyer in private practice needs to have in understanding the goals and motivations of different clients. 

Working as a government lawyer offers the potential to work on high-profile issues and the privilege to have a concern for doing the right thing, not just present facts or issues in the light most favorable to a client.  The goal of the prosecutor is not to win, but to seek justice.  The goal of other government lawyers is to try to shape policy and law in a manner faithful to congressional intent and to the benefit of the public.  Institutional interests and political concerns do sometimes weigh heavily in the decisionmaking calculus, but the larger values are always present.  When I worked in the government, I was cognizant that on any given day, there might be an issue or a direction that I could not support or rationalize, leaving resignation as the only responsible course of action.   Happily, the occasions giving rise to such tensions are few, but every lawyer has boundaries he or she will not cross.  In private practice, lawyers sometimes must navigate situations in which clients act in ways that make it more difficult for attorneys to represent them.  In both government and private practice, these situations are difficult. 

From what I have said, it is probably clear that I think that the “client” is a different concept for the government lawyer than for the lawyer in private practice.  I think the concept of “zealous advocacy” should be interpreted differently for the government lawyer than for the lawyer in private practice.

I am also reminded of process constraints every year when I teach the material on ex parte communications and bias and prejudgment.  These materials teach the public sector lawyer and the lawyer in private practice always to ask the question about how the person on the other end of the communication may perceive it before picking up the phone to make a call or meeting with a decisionmaker. 

4.  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 think that this is where I am supposed to say that joining the Section of Administrative Law & Regulatory Practice is the best way to become immersed in many of the central issues in the field! The substantive projects and programs of the Section offer great learning opportunities and the ability to connect with leading practitioners and academics in the field.  These people can be tremendous resources for lawyers.  On a related point, reading the Administrative Law & Regulatory News is a way to stay current.

Law students really should take a course in administrative law.  To paraphrase the slogan on the Section’s tee shirts, every field of law involves administrative law to some extent, so have the overview is really important.   The business sections of the leading national newspapers—and sometimes the front page—also are excellent sources of information about important state and federal administrative actions affecting particular industries or sectors. 

5.  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.

Tom Susman, who is now the ABA’s Director of Government Affairs, was a partner in the law firm with which I practiced and he had been involved in the Section.  He put my name forward to the nominating committee for a position on the Council after I left the government and that was the beginning of my involvement with the Section.  The meetings and programs are really interesting and thought-provoking, and are useful in teaching administrative law.  Also, I enjoy the people immensely—they are smart, creative, and welcoming.  The Section provides colleagues in the field across the political spectrum and across the various substantive administrative law fields.  Section involvement also offers the opportunity to have a role in the debate on policy issues in administrative law.  The Section is a well-respected source for information and commentary on developments in administrative law, and it is a privilege to be part of the Section’s policy-making process.

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

Until my son went off to college two years ago, I spent a lot of time driving and attending sporting and performance events in which he was involved.  As he attends college near home, I still attend a lot of concerts in which he is involved.  It is fun, not a parental duty!

I serve, or have served, on several boards for organizations that are not focused on law:  an art museum, a university library advisory committee, an advisory board for a public policy center, and advisory board for an institute for advanced study, the boards for the Big Sister Association of Greater Boston, the public television and radio organization, and Planned Parenthood League of Massachusetts, just to name a few.  All of these organizations do encounter interesting legal issues, but the primary focus is something else.  What keeps me sane is singing in a community chorus—the weekly rehearsals, which can be demanding, transport the mind and body to a different realm of discipline and, one hopes, beauty.  I do like going to museums and traveling.  The Section does provide the chance to travel the U.S.—another benefit of being involved.  Suffolk University Law School has had a summer study abroad program at Lund University in Sweden for 16 years, and I have been fortunate enough to teach Comparative Health Law for the program three times.  Teaching in Sweden has afforded me a chance to live and work in a different country, to teach foreign students who bring unique perspectives and critiques to the U.S. approach toward financing and delivering health care, and to see another health care system in operation. 

Also, since I was 9 years old, I have been baking pies.  Watertown, where I live, has a Faire on the Square, in the fall, and an apple pie contest is one of the events.  I have entered almost every year since 2001.  I have won second place once (beginner's luck), third place twice, and have won the contest the last two years.  Also, I bake triple berry pies for the dessert for the July 4th celebration for the Swedish and American students and faculty in the Lund summer program.  I have to bring some things from the U.S. because pies are not really a continental European thing. 

Meet William Haeberle, Section Law Student Division Representative

1.  Where do you attend law school and what led you to law school?

I am a second year student at Case Western Reserve University School of Law in Cleveland, OH and hold a Master’s in Applied Medical Ethics from Arizona State University. I became interested in law while researching issues in public health ethics. While doing this research, I confronted the massive overlay of laws and regulations that affect public health and discovered I was more interested in studying the macro aspects of public health regulation than I was in pursuing the original research question.

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

Unfortunately, I have had very little experience with administrative law beyond research in public health. I am however, currently working with the City of East Cleveland, through a CWRU course, to develop legislation for the regulation of flavored non-cigarette tobacco products. Additionally, I am hoping to work with one of the plethora of public health agencies this summer and gain insight and experience into the regulatory/policy side of this field.

3.  How did you become interested in studying or pursuing a career in administrative law?

While pursuing my Master’s I learned two major points that led me administrative law. First, that good philosophy doesn’t necessarily make good policy; and second, that the law’s impact is very much determined by administrative/regulatory bodies.  

4.  Based on your experiences thus far, what do you perceive to be challenges facing administrative law practitioners?

I believe one of the greatest challenges facing administrative lawyers is a lack of resources necessary for agencies to take on the panoply of important tasks they’ve been assigned. While administrative agencies’ responsibilities continue to grow, their budgets are being cut. This lack of resources is especially troubling in the health care field, where even delays in services can severely impact the agencies’ mission.

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?

Administrative law is everywhere’ as a practitioner you can’t avoid it. I personally believe Admin Law should be a required course. Though, this could be personal zeal speaking. Interested students should remember that administrative agencies work at every level of government, from local communities to the national level. Students and new practitioners should look for these opportunities and also the opportunity to clerk for administrative law judges.

5.  From a law student’s perspective, how would you characterize the dialogue between academics, students, and practitioners in the area of administrative law?

I think the Administrative Law Section does a wonderful job facilitating dialogue. The Section offers law students free admission into the Section and free attendance at many Section events. Because of geographical limitations of holding events, one can’t be everywhere at once, so the ability to communicate through events is somewhat limited. However, the Section also holds teleconferences and webinars to promote further dialogue.

6.  As the Law Student Division representative to the Administrative Law & Regulatory Practice Section, what were your goals for the year? What do you think could be done in future years to foster interest in administrative law or joining the Section? What have you enjoyed most and found to be most challenging in your role?

The Administrative Law Section’s motto is “Admin Law, everyone does it.” I think the truth of this motto should be the basis for outreach to law students. No matter what area of law one intends to practice there’s likely an administrative agency the attorney will have to deal with. I’m hoping to help put together some sort of programming that is easily accessible to law students – perhaps a webinar – and that introduces the vast array of administrative bodies and their effect on the practice of law. I think that such an outreach program would help increase interest in the field to the many law students who don’t realize the impact administrative law has on their future practice.

As for difficulties in my role, I think the most difficult challenge has come from the geographic divide. The Section and many of its leaders are in D.C. and I’m sitting in Cleveland, which is a seven-hour drive away. I think this difficulty is similar to the difficulties the Section has with outreach generally. However, I think the Section does a great job with communication and inclusiveness.

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

I have been a rock climber for the past seven years. Due to the general lack of climbing in the Cleveland/Ohio area and the time necessary to focus on law studies, I built a climbing wall in my apartment. On a few warmer weekends, I travel to climb.

Profile on William Jay: Rising Star in Appellate Advocacy

William Jay, a partner at Goodwin Procter LLP, was recently a featured speaker in the Section’s Supreme Court Series Teleconference entitled Perez v. Mortgage Bankers Association: The Supreme Court Considers the Limits on Notice-and-Comment Rulemaking Requirements.   Notice and Comment had the opportunity to sit down with the Law360 2014 Rising Star and hear about his diverse career and advice for aspiring administrative lawyers.

Growing up on a horse and cattle farm, Jay did not always plan to pursue a legal career.  He became interested in the law while attending Harvard College, where he had the opportunity to intern for a local member of Congress and the Chief Counsel of the Senate Republican Policy Committee.  His experience working for the committee ultimately led him to apply to Harvard Law School. 

Jay began his legal career as a law clerk for Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit.  It was an invaluable experience in light of the variety of cases that clerks can work on, ranging from criminal matters to contract interpretation.  “I would recommend clerking to anyone who is interested in litigation because it gives you a perspective on how judges think and review legal issues,” he noted. Jay also had the opportunity to serve as a law clerk to Supreme Court Justice Antonin Scalia, an experience he described as unlike any other job a young lawyer can have.  Although the Justices do a lot of their own work, it was an amazing opportunity just to be a “fly on the wall,” and an experience that would greatly inform his appellate litigation practice.

After clerking for Justice Scalia, Jay returned to the law firm of Gibson Dunn & Crutcher LLP where he worked for a total of four years.  While at Gibson Dunn, he was a litigation associate with the firm’s Appellate and Constitutional Law practice group.  He also worked on administrative law matters, ranging from an APA challenge to a Transportation Department rulemaking to advising clients on compliance with campaign finance regulations.  The firm is known for its high profile appellate practice, but Jay was drawn to the opportunity to work with great people and mentors. 

Even though he was very happy at Gibson Dunn, Jay’s career took another interesting turn when the Office of the Solicitor General at the U.S. Department of Justice posted several vacancies in 2007.  The Solicitor General’s office represents federal agencies before the Supreme Court and also supervises the government’s appellate litigation and defense of federal statutes.  This was only the second time in the previous three years the office was hiring, so Jay felt he would regret not pursuing such a rare opportunity.  To his surprise he was hired to serve as an Assistant to the Solicitor General. In his nearly five years in the Solicitor General’s office, he argued 11 Supreme Court cases, wrote 20 Supreme Court merits briefs, worked on approximately 150 briefs in opposition to certiorari, argued cases in Courts of Appeals, and participated in other aspects of litigation. 

Jay’s variety of experience greatly informs his current role as Co-Chair of Goodwin Procter’s Appellate Litigation group.  He represents clients in Supreme Court cases like Perez v. Mortgage Bankers Association (in which he co-authored a brief for the National Mining Association); briefs and argues cases in appellate courts around the country;  and handles a number of trial court matters, including administrative law cases for both plaintiffs and defendant-intervenors.  Jay noted that he enjoys working on a mix of appellate and trial-court cases, and that it is important to understand how trial courts operate when handling appellate matters.  Gaining that understanding is difficult to do if you haven’t experienced motion practice. 

Jay recommended aspiring administrative lawyers consider diversifying their careers.  In the rulemaking context, he said, “whether you are writing rules for an agency or comments for a client, it’s important to fully understand the opposing side’s perspective.”  In order for an attorney to draft useful comments on an agency proposal, he stated, it helps to experience what it’s like for agency staff to read comments and write rules.  He also noted that it helps to know how businesses think if you are drafting regulations for an agency.  He offered a word of caution, however, noting that even recognized experts in a field cannot anticipate every possible scenario during a rulemaking, so even seemingly clear rules will end up needing interpretation as they are applied to unanticipated facts.  What clients need most in that situation is not just experts in the subject matter, but counsel with good judgment.

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

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?

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.