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Observations from the GWLR Administrative Law Panel

On Friday, October 20, 2017, The George Washington Law Review (“Law Review”) hosted a panel titled, “Evaluating Federal Actions: The Powers, Processes, and Proclamations of Administrative Agencies and the Oval Office” as part of the American Bar Association Section of Administrative Law and Regulatory Practice’s 2017 Administrative Law Conference. The panel brought together Cass Sunstein of Harvard Law School, J.B. Ruhl of Vanderbilt Law School and his co-author John Nay of New York University School of Law, and Aaron Nielson of Brigham Young University Reuben J. Clark Law School.

The event commenced with Law Review Editor-in-Chief, Katelin Shugart-Schmidt introducing Robert Glicksman of the George Washington University Law School as moderator and noting that the day’s presentations would appear as articles in Law Review‘s publication of Volume 86. Professor Glicksman, a noted expert in environmental, natural resources, and administrative law, joined the faculty of George Washington University Law School in 2009 and presently serves as the J.B. and Maurice C. Shapiro Professor of Environmental Law. He has published scholarly articles in numerous law journals, including the Pennsylvania Law Review, the Northwestern University Law Review, the Stanford Environmental Law Journal, and the Administrative Law Review.

Professor Glicksman first introduced Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School and a former law clerk for Justice Thurgood Marshall. Professor Sunstein is a noted author (his books include Republic.com, Nudge, Simpler, The World According to Star Wars, and The Ethics of Influence), lecturer, Administrator of the White House Office of Information and Regulatory Affairs, and served on the President’s Review Group on Intelligence and Communications Technology for the Obama White House).

Professor Sunstein’s lecture, “The American Nondelegation Doctrine,” detailed what he called the “fine-grained and narrowly tailored nondelegaton principles” of the American doctrine. Professor Sunstein argued that unlike the “old nondelegation doctrine,” which has not had vitality since the New Deal era, the modern American nondelegation doctrine allows Congress to grant a narrow and targeted delegation of duties to administrative agencies, but requires specificity in statutory language before those agencies can make certain kinds of decisions. The American nondelegation doctrine, Sunstein posited, is given form by the canon of constitutional avoidance, the rule of lenity, and the presumptions against retroactivity and extraterritoriality (and the newer concept advanced by the late Justice Scalia requiring agencies to consider costs and barring them from reading statutes in ways that enhance agency power). In response to a question following Professor Sunstein’s talk, he addressed the deterrent effect that the principles of the American nondelegation doctrine would have on administrators and administrative action even absent judicial intervention; however, Sunstein noted that this doctrine is less a practical tool for practitioners and is more a demonstration that the principles of the nondelegation doctrine have survived through these canons of interpretation.

Professor Glicksman next introduced Professor J.B. Ruhl and one of his collaborators, Dr. John Nay, who, along with colleague Jonathan Gilligan, have prepared for publication an article tentatively entitled “Topic Modeling the President.” Professor Ruhl is an expert in environmental, natural resources and property law who also studies the legal industry and legal technology. Dr. Nay is a post-doctoral research fellow at the NYU School of Law having earned his Ph.D. in computational decision science from Vanderbilt University, and a founder of Skopos Labs. Professor Ruhl delivered remarks for the group.

Professor Ruhl explained how advances in artificial intelligence (“AI”) could be used to “topic model” the law, a traditionally labor-intensive task of gathering, reviewing, coding, sorting, and assessing many thousands of legal documents in order to classify large chunks of legal text into distinct topics, in order to draw insights and conclusions from the assembled mass. “Recent advances in computational text analytics, a branch of [AI], are already gaining traction in legal practice settings such as e-discovery by leveraging the speed and capacity of computers to process enormous bodies of documents into a topic model.” He noted that conventional and computational methods each have drawbacks, but taken together, they can provide a powerful research tool for legal scholars. Professor Ruhl and his colleagues demonstrated the efficacy of their technique by applying their computational topic model to a cache of presidential documents known as “executive direct actions” (“EDAs”). He noted that “EDAs comprise actions such as executive orders, presidential memoranda, proclamations, and other exercises of authority the president can take directly, without congressional concurrence or involvement.” The group’s findings showed that the results of their computational topic model (the distribution of topics and the proportion of documents that fell into each topic) mapped closely to such categorization done by hand by other scholars; it can provide important insights for legal scholars in designing and validating their topic models of legal text. Professor Ruhl remarked that the uses of topic modeling of documents in administrative law could be wide-ranging; for example, administrative agencies could use topic modeling to sort comments for response during notice-and-comment rulemaking.

The final speaker was Aaron Nielson, Associate Professor of Law at Brigham Young University’s J. Reuben Clark Law School and former law clerk to Justice Samuel Alito. Professor Nielson serves as a public member of the Administrative Conference of the United States and co-chairs the Rulemaking Committee of the ABA’s Section of Administrative Law and Regulatory Practice.

Professor Nielson’s talk was entitled “Optimal Ossification.” He defines “‘ossification’ as the term commonly used for the notion that “when it comes to rulemaking, it takes agencies a long time to get anything done.” While “ossification” is normally a pejorative expression, Professor Nielson sees value and utility in the slow and steady deliberation of the administrative rulemaking process. Deliberateness carries the collateral benefit of preventing error. Procedural delay, he argued, can operate as a “credible commitment mechanism against change . . . . Moreover, for the most significant rules, delay gives the public time to respond and adjust.” As a credible commitment mechanism, deliberative regulation ensures the public that such regulation is not likely to change in the near future, which in turn encourages private investment in reliance on those rules. Additionally, the lengthy rulemaking process is a source of agency legitimacy; it takes time for the public to become informed about what the agency is doing and why, and if the agency were able to act before this information was disseminated, the public would be less likely to accept the agency’s decision. Delay, however, is not always beneficial. Noting that “not all regulatory schemes need a credible commitment mechanism and sometimes too much delay undermines rather than enhances public confidence,” Professor Nielson identified the challenge: to maximize the benefits of ossification while minimizing its costs.

Post authored by Alex Coffin, member, The George Washington Law Review.