The Federalist Society kicked off its 2012 annual Student Symposium at Stanford with a panel on “The Rule of Law and the Administrative State.” After an introduction from Judge Carlos Bea, Peter Shane, professor at Ohio State University Law School, began by denying that there is an idea of the rule of law that we all can agree on. The rule of law, he said, is "an essentially contested concept." To defend this claim, he offered a thought experiment. Suppose one is asked to answer the question: Is Bush vs. Gore the epitome of the rule of law? Professor Shane stated that a serious argument could be made for both yes and no based on different reasonable understanding of the "rule of law." Instead of focusing on limits on government via rules, he encouraged us to consider the rule of law as a matter of our institutional arrangements, such as judicial review.
Richard Epstein, professor at New York University Law School, denied that the rule of law is essentially contested, pointing to John Locke's Second Treatise of Government, which, he said, gives a procedural understanding of the concept that avoids committing us to any particular substantive conception of law. As an example of what he believes has gone wrong in administrative law, Epstein referred to a case called Association of Irritated Citizens vs. EPA as evidence that, despite centuries of precedent, a person may no longer bring a common law nuisance action due to EPA regulations.
David Barron, professor at Harvard Law School, discussed how Congress has evolved in its delegation of authority to agencies. In the past, he explained, the law was vague, and agencies were given broad discretion to effectuate it. Increasingly, however, the statutory framework is specific, but agencies are given the power to waive enforcement, which is sort of a veto power. An example of this is the No Child Left Behind Act, in which he said such waiver authority is well articulated.
The final panelist, Judge Brett Kavanaugh, opened his remarks by recalling how, as a law student, he greatly enjoyed his first trip to a Federalist Society Student Symposium, which was held in 1992 at the University of Texas. He emphasized that in the last two or three decades, there has been a tremendous shift in how federal courts are interpreting statutes. The text of the law now matters to courts much more than before. On a separate note, he discussed what he saw as the serious policy problem in holding independent federal agencies--i.e., those that exist outside an executive department--accountable. Executive department agencies are accountable to the president, who is accountable to the American people, but the judge suggested that there is a lack of such accountability for independent agencies such as the Federal Trade Commission.
The ensuing discussion period ranged widely. Among other things, Epstein agreed with Judge Kavanaugh that there has been improvement in statutory interpretation, but argued that there is so much administrative law that most of it will never come before a judge.