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Professor Kathryn Watts' Installation and Lecture

The Tug-of-War Between Expertise and Politics in Agency Rulemaking

January 14, 2013

Dean Kellye Testy

Well good afternoon everyone. I'm Kellye Testy the Dean of the University of Washington School of Law. And it's a great pleasure for me to welcome everyone this afternoon to the installation of Prof. Kathryn Watts is the Garvey Schubert and Barer professor of law. This is the day we have all been anticipating and had just looked forward to in every way. And so I want to thank you all for coming to engage with us in this wonderful celebration of the on our thinking Kathryn and recognizing her many contributions to legal education.
It's my pleasure to begin our ceremony today to introduce Mr. Michael Garvey to make some remarks on behalf of the Garvey Schubert and Barer firm. As I do so I want to thank Garvey Schubert and Barer for their many ways that they support the school of law not just right now but throughout so many years in our history and in just so many diverse ways.
Mr. Garvey began his practice with Preston Thorgrimson and then became one of the members of the Garvey Schubert and Barer firm and was there from 65 through 88. He is not only a leader in law in the state of Washington but also in business having been cochairman and CEO and then later the chairman of Sulchek Resources Incorporated. Mr. Garvey not only has worked at Sulchek in such important leadership roles but he has also been on the board of many firms throughout this region and contributed to their leadership in that way.
I want to thank him for being here because he is himself a wonderful example of the excellence to which this law school has committed itself. And Mike I really appreciate you being with us and for all of your support. So please welcome me in joining Mike Garvey.

Mike Garvey

I'm an old retired guy now and you folks in the firm I want you to see these three stripes. I read the piece in the brochure about the firm and I'm going to talk about the firm in the early years. It's genesis was in the law review office in 1962 and 3 and three and four. And Bill Halger and Ken Schubert and I were there. Stan Barer was one of the older guys. He was in the class ahead of us. I worked hard to think that, “you know we can start a firm. We can do this.” It was an incredible act of naïveté and hubris all of which was me. And finally Ken and Bill convinced me that we should spend a couple of years learning how to practice law before we started a firm. So it was in September of 1966 that we started Garvey Schubert and Barer.
Now the first year I remember the numbers I'm a numbers guy our total revenue that we brought into the firm was $45,000 for three of us at the time. And I calculated based on the hours that we worked that our average hourly income was a little less than five dollars an hour. We operated on several principles. One being total hubris: we thought we could do anything, take on anybody. And we were willing to try and outwork anybody. The second principle was never to take ourselves seriously or any of our partners seriously. And so there was this thing that developed in the firm over the early years I always thought about the metaphor of the Stanford marching band. Have you ever seen the Stanford marching band? They all go off and play, you know they don't march together. They walk around. That was our law firm. It was a wonderful, fun place to be and to start my career in that time. You can read in the brochure where the firm is today. It was an event in my life that was very formative for me and one of which I am the most proud of all of my professional accomplishments in my life.
Several years later, this would've been the late 70s. We started to get the kinds of problems that you get as your firm grows. At one time I believe we had six members of the law school class here, the class of 69. Isn't that right John, six members at one time from that class? We really hired the mall and got them in there. And we decided that we would benefit from having a closer association with the UW law school and so we approach them with the idea of starting a scholar in residence program. And for some years in the summer one of the professors would come out to the law firm and spent his summer in the law firm. We would assign to him one specific task. He would not be in with clients or anything. I remember Neil Pecks was our first professor, his notion was help us to get the transition of our associates from law study to law practice. Help us work our way through those issues. And all of these professors contributed mightily to our developments during those early years. And I would like to recognize them. Besides Neil there was Ralph Johnson, Dick Cummert, John Haley and Phil Trout which was a wonderful group of people that we learned a lot from and had a wonderful time.
Now one of the things that we did is we would have a summer retreat. I think we were the first firm to start this idea of a summer retreat. And at the summer retreat the partner's objective was to create a game. Sometimes it was volleyball sometimes it was touch football. In our objective was to beat the Associates. And we would use any form of skullduggery to do that to teach them that there are no real rules in life. You got to make them up as you go and you got to win. Neil Peck was so impressed with the fact that everything in our law firm was a negotiation that he came back and started a course on negotiation.
In 1987 the University of Washington started its first fund drive of any significance. Their objective was to race $200 million. In the law school's share of that $200 million was $8 million. Today though some stones sound like a lot of money but they were difficult to achieve. And we decided in our law firm that our participation in that would be to create the Garvey Schubert and Barer professorship. And we did that and I am told today that it was the first endowed professorship in the law school. And over the years it has grown, I'm not sure how much it is today, but it has grown. And it has been consistent. And we had two purposes in doing so. One was to encourage excellence in the law school: excellence of the students, excellence of the faculty, excellence of our reputation. In the other which was interesting to me was to ask the law school faculty to help re-inspired us. Every once in a while in your career… and if you've all gone through a phase in your career where you kind of get a burned-out feeling about what you're doing. And one of the things that we thought that the law school could provide was to reinvent that feeling, that kind of and inspiration. The concepts that we were doing something that's very valuable for society. Now I left the firm in 1988 and the firm has progressed mightily in my absence and probably because of that. But again it is the proudest thing that I have done and I am so grateful and honored that I have been asked to introduce tonight professor Peter Nichols.
Peter is a graduate of the University of Michigan both undergraduate and a master of public policy. He is a graduate of Harvard Law School. He was a research economist and consultant at the University of Michigan. The item on his resume that I was most interested in was the fact that he was a city Council member in Ann Arbor Michigan and he was reelected. He has written four books on evidence, numerous journal articles, given a lot of talks. And he is a wonderful addition to our faculty and Peter Nicolas

Peter Nicholas

Well good afternoon everyone thanks for being here. And it really is an honor to have been asked to introduce Kathryn Watts to you today on this special occasion. And really the hardest part of this job is trying to figure out how to boil down into the 8 min. allocated to me the very many accomplishments and special attributes she has.
So let me just start with an executive summary which is for those of you who know me well I tend to be known as having demanding, some people say impossible, standards of both performance and personal character that I hold everyone, myself included, too and I am easily and frequently disappointed which also means I tend not to shower people with unwarranted praise. But I will repeat today what I said during the vote on Kathryn’s promotion to full professor or a couple of months ago: "it's really true, Kathryn really comes close as humanly possible to walking on water." And as I said that sort of praise comes from six years of getting to know her as a colleague and a friend and during that time I have just developed the highest respect for both her intellect and your character. So let me give you a little bit of her personal background. And when you learn her personal background it wouldn't be surprising that she either ended up as a lawyer or back here in the Pacific Northwest.
Six generations of her family have lived in Oregon. Five of those generations so far have practiced as lawyers and many of taking on leadership roles in public life. Her great-great-grandfather Thomas Tongue was mayor, state Sen., and member of Congress, her great-grandfather Thomas Tongue and attorney. Her grandfather Thomas Tongue litigated before the US Supreme Court and was also a member of the Oregon Supreme Court. And her father and brother Thomas Tongue and Thomas Tongue respectively both highly respected, practicing attorneys in Oregon. So perhaps the most surprising thing about her is that her parents didn't name her Thomas. You know I could have suggested Thomasina is a good British alternative.
As the black sheep in her family with the only name not associated with Thomas she was banished from Oregon for a while. She went to Illinois where she attended Northwestern University for both her undergraduate and law degrees. And I have to tell you she didn't get in user A- is in law school. Actually, it was pretty much all a pluses. She graduated number one in her class and graduated summa cum laude. Of course she was on the law review. And all of those a, accomplishments did not go unnoticed by members of the federal judiciary and she was quickly snapped up for two of the most prestigious clerkships first on the US Court of Appeals for the DC circuit with Judge Randolph and then on the US Supreme Court with Justice John Paul Stevens. And somehow in between those clerkships she managed to co-author a law review article that was published in the Harvard Law Review. And for those of you not familiar with the difficulties of publishing, particularly at the high level that would be a career topping dream for a seasoned faculty member and so for her to accomplish that right out of law school is extraordinary.
So she finishes the clerkships, spends a couple of years as an associate at Sidley Austin in Chicago and then went back to her alma mater as a visiting professor and then she went on the law school teaching market. And she was a candidate here at the UW. And of course we were all wildly impressed with her credentials but I'm sure that we could land someone with those credentials. But we were lucky because we had something she wanted namely, a desire to be back in the Pacific Northwest in close to her family. Now I too was impressed with Kathryn but that healthy dose of skepticism was still there. Lots of times people with those kinds of credentials have one sort of drawback or the other. They might be great publishers but terrible classroom teachers were they are good at what they do but they are just really unpleasant people or they look good on paper but they lay an egg when they arrived to perform the task. Ending Kathryn's case she did lay an egg, lots of them except in her case every egg that she laid was a golden one. If you go and look at all of the ways that we measure faculty performance: teaching, scholarship and service Kathryn's consistently scored a homerun. I told you about the Harvard law review placement but that was just the first of many. It was followed by placements in law reviews at Yale, the University of Pennsylvania, Duke and UCLA among others. And as I said anyone of those would be considered a career topping achievement for many and yet she is consistently doing that and also being cited frequently by other academics as well as courts.
She has a new book coming out this year on Supreme Court decision making. And so as you can see on the scholarships side she has done fairly well. With regard to teaching she consistently receives glowing evaluations from our students and has been voted teacher of the year multiple times for her various courses in administrative law, constitutional law and Supreme Court decision making. And she may be the only person I know who has had triple digit waiting lists which says something when you have a class of about 180 in each of our three years. And it's not because she is an easy teacher. She's got tough standards and high expectations for her students but her students realize exactly what they will get out of that classroom experience.
Now a lot of times people with Kathryn's star power even though there's three parts of this job-teaching scholarship and service, tend to shirk that service part in most schools indulge that but Kathryn's as with everything else taken that part of her job very seriously and taken on a number of leadership roles in the school among the most recent of which are serving as director of our judicial clerkship program and associate Dean for research in faculty development. And to give you an idea of how important that last rule is it's pretty much unheard of for a faculty member to be the research team if they still haven't attained the rank of full professor and yet she was appointed just upon getting tenure simply for the leadership that she's demonstrated in that area.
Everything I've told you so far explains what makes Kathryn distinguished but it really actually has very little to do with what makes her special. What I would say is it's her personal traits of humility, generosity, integrity, along with her can-do attitude that make her a standout I think in the crowd. And so there are lots of attorneys here, lots of academics you know both of those groups have large egos you put the two together in one and you know the result is in my experience there is usually an inverse relationship between the size of one's ego and what the goods are to go along with it. In Kathryn's case she has that same inverse relationship except it's in the opposite direction that most people seem to have. There are many people that if they received all a pluses they would say, "geez why didn't they create a new grade of a triple plus just for me?" Kathryn had rather the opposite reaction which was to run and check and make sure they had switched her grades with someone else with a similar name or close by in the alphabet. And that is sort of symptomatic of her humble nature about her accomplishments and something that makes it very hard despite her enviable resume to be jealous of her. It's just not the sort of character trait that engenders that feeling.
Another valuable aspect of Kathryn is her generosity with the gifts that she has as a scholar and teacher. A lot of people with those credentials kind of lock themselves up in an office and published in don't really interact with other people that she has put a lot of time into helping the rest of us as faculty members to increase our success as scholars. She makes herself very available to her students so that they can come and meet with her in office hours and the like.
With regard to integrity let me just say this if you had to lose your wallet you can be sure if Kathryn found it it would be returned to you with all the cash still there. I'll just give you one anecdote to explain that sort of honesty and integrity that she has just in the way that she lives her life. We have a complicated scheme of giving parental leave at the University of Washington which by my view is designed probably to deny any man the ability to take parental leave. And the way it's accomplished is by only allowing the leave if someone justifies it as a disability leave. There are some people who after becoming pregnant and giving birth are certainly have a physical disability for a period of time but oddly everyone seems to have one for exactly 90 days. And that's because that's the precise amount of time the University will get paid leave in virtually any Dr. will write the note if you just ask for it. But Kathryn wouldn't do that because she well she gave birth and could have certainly used the paid leave, didn't feel it was right to falsely state or ask someone to write that she was disabled particularly when there were other people, male primary givers and adoptive women who were excluded from this scheme. So that just kind of gives you an idea of how she lives her life.
And then a sort of last thing. Everybody I know who talks about Kathryn sort of is in awe of this magical Stoic ability that she seems to have to balance all of the competing aspects of her very busy professional and personal life. And every once in a while when I think of that I think of Margaret Thatcher and of course many people don't share her politics and you don't need to share the Iron Lady's politics to be impressed with the way deals with that question when she is asked by reporters, "how is it that you are able to do all of that prime minister stuff and still do this other stuff parenting and cooking and stuff?" And she just looks at the reporter and says, "You don't think about it you just do it and get on with it." And that is sort of the impression you get from Kathryn. And of course the truth is the balance is not an easy one and she does a wonderful job of gracefully balancing so many different competing responsibilities. I think I figured out sleep is what gets sacrificed because I know from sin e-mails late in getting quick responses in reply that that's where her sacrifices. But you would never know it from looking at her.
Let me close by saying this: Kathryn has an infectious quality about her and it's a quality that makes you want to be better both that how you perform your job and how you are as a person. And in terms of career possibilities I really think the sky is the limit. She could just skip the whole state Supreme Court state attorney general and go right to the top and I think that the country would be all the better for it. And I think I speak for all of us when I say selfishly I hope that you do none of those things because we would like to keep you around here on the faculty as a cherished colleague and friend. And so with that it is my pleasure to turn the podium over to the Dean who will now introduce you to the next Garvey Schubert and Barer professor of law.

Dean Kellye Testy

Why don't you come join me? So as I have the honor of bestowing the metal recognizing Kathryn as the Garvey Schubert and Barer professor one of the things that I want to acknowledge is that Kathryn and I have spoken about this before that we both feel incredibly privileged to be a part of this institution. This law school has an amazing history. And when you think about even some of the professors that Mike mentioned you know professors like Prof. Fletcher and Prof. Stoebuck and Prof. Rogers and on and on right? And you think about the alumni that have graduated from the school many of whom are sitting right here in front of my eyes today is that they have brought the school it's really humbling and it's such an honor to be part of the school.
But as I say that today I want to acknowledge that one of the things that I often think about is that as distinguished as this law school has been and it's incredible I am very confident that the best is still yet to be. And it's the faculty member right here beside me that gives me that confidence not only through her own modeling of the kind of standards of excellence that she has and holds for herself in this institution but also in the way that she has an incredibly generous spirit as Prof. Nicholas noted. And has really helped us to higher and to develop a whole new generation of faculty that is just lighting up the sky. So Kathryn I want to thank you today in recognizing you as the Garvey Schubert and Barer professor of law.

Kathryn Watts

Thank you so much. It is really just such an honor to be here today. I get a little emotional looking out at the crowd and seeing so many former students in my family it's just wonderful so thank you. Before I get going with the heart of my lecture which will hopefully maybe actually a dry subject you know administrative law is not very dry to some people maybe it will be good for me at this point but I want to thank many people in the room who have helped me get here today who have supported me along the way. And of course Dean Testy I have to start with you. Your leadership has just been tremendous. The law school is clearly on the rise we are clearly going places and that is largely due to Dean Testy's tremendous leadership, her energy, her enthusiasm and her constant support and encouragement of faculty, student, staff all that we do in our mission to the law school so thank you Dean Testy. I also want to thank Garvey Schubert Barer and I want to think the firm and all of the members of the firm that I see in the audience today for your constant support of the law school. When I learned that I was to become the next Garvey Schubert Barer professor I felt rather intimidated because I know that the firm is really one of our biggest cheerleaders and supporters. I know how much law firm means to law school so it is just really a tremendous honor to have the Garvey Schubert name on my professorship because of all that the firm and the many, many individuals within the firm all you do for us at the law school so thank you so much for your constant support and encouragement. Peter also, my colleague thank you for the wonderful introduction. It is so wonderful to have Peter as a colleague, a mentor and a friend. His energy and enthusiasm about what we do as law professors and how we work with are law students is really truly infectious and so I appreciate so much having him as a colleague. And so many other wonderful colleagues in the room many of them that I see here today that I am so thankful for to work at an institution that is filled with so many tremendously talented individuals-faculty members, staff members. We have just an outstanding staff. Staff members like Hannah Houston who put on events like today, outstanding support staff: Cindy Fester, Bernadette O'Grady, Lauren Anderson all support me in the work that I do. Outstanding librarians that make our job as faculty members seen easy because of the research that they do for us in the help they give us in our scholarship and our teaching so I want to thank all of them. And in particular I want to give a thank you to a real core group of my colleagues that are here today as well. Given that I am a working mom who sometimes juggles, struggles my full-time job with raising two little kids who are here today Alex and Claire I want to say thank you to a group of colleagues that includes other working moms like me with little kids at home: Lisa, Shannon, I see Liz, I see Senate here as well as well Stephanie Cox also here, all of these working mothers are just an amazing source of support. They are the kinds of colleagues who will see on my face when I have had a rough night because my four-year-old Claire has been up all night. They are the kinds of colleagues who will text or e-mail late at night when I have got a sick child at home to see if I need anything at work. And that is a really amazing thing to have because when my mother started practicing medicine in the 1970s and when her mother started practicing medicine in Germany in the 1940s that didn't exist so, thank you mom as well. My mother right there. They didn't have that kind of constant support and neither did a woman named Lucille Lomen. I don't know how many of you have heard of Lucille Lomen. Lucille Lomen was a woman who went to law school, graduated in 1940s and she went to the University of Washington's law school nonetheless (because Harvard wouldn't take women at the time). She went here and she graduated at the top of her class and she got a clerkship with the United States Supreme Court. She was the very first woman to get a clerkship at the United States Supreme Court one of our own graduates. She certainly didn't have that opportunity to work in an environment like idea where she was supportive by other working women as well. It was more than two decades before another female was hired at the United States Supreme Court. It was not until the 1966 term that we got another. During that time period between Lucille Lomen in the next female clerk someone named Ruth Bader Ginsburg you might have heard of her she was recommended for a clerkship at the US Supreme Court. One of her professors put up her name to Justice Frankfurter. Justice Frankfurter considered her, heard that at the time she was married, had a five-year-old at home and had a husband who is battling cancer and justice frankfurter for whatever reason said no. So Justice Ginsburg didn't have the opportunity to clerk at the Supreme Court. So fortunately for me things have really changed. By the time I was at the court I was one of 13 women out of 35 clerks: still not quite an equal number of but a magnificent improvement. And now that I'm here at the law school I am supported daily by laughter, support, friendship of other working women and that really means the world to me. So thank you to all of you who are here and are part of that core group.
Also my students, I see so many of you here in the audience, former students current students and also research assistants that have worked for me and have given me tremendous support in my scholarship. I see David Crawford, Sarah Cox, will good lean, Aaron I think I saw you somewhere out there over there as well Aaron Adam. These students help to research for me generally over the summertime sometimes during the school year and it makes my scholarship so much more successful to have their help so thank you for all that you've done.
And then finally my family. I want to thank my family for being here. I have my husband Andrew here and my two children Alex and Claire. I wish I could say that this was your first lecture from mommy. You have had some other lectures from mommy maybe not about the regulatory state, may be about things like brushing your teeth or eating your broccoli right? But it's wonderful to have you here listening today. We will see how long they last. Other wonderful members of my family are here in the room: my husband, my mother-in-law, my father-in-law, my mother and my father, my brother, Mike and uncle and dear friends who, as far away as Chicago. With respect to my father and my brother before I get going with my lecture I do just have to pause and say one thing which is that it is so much fun I am relishing seeing them here in this room full of purple and full of Huskies right? Go Dawgs! Loyalty to the Oregon ducks runs very deep in my family and they are rabid Oregon ducks fans, and so rabid that my son Alex asked Santa this year for a football helmet, and Oregon duck football helmet. So I just want to say thank you to all of those ducks in the family for traveling into Husky country today. It's wonderful to have you here and thank you so much for all the support that you've all given me.
So with that then let me turn to the substance of turn to the substance of my lecture. Let me see where Lenny our wonderful AV helper left the slide advancer for me. Well will use the laptop today. So my job today is talk and yours is to listen. The challenge for me will be to finish my job before you all finish yours. We'll see if I can accomplish that. What I want to talk about today with you is the role of politics in in agency rulemaking, and specifically the clash or the tension between politics and expertise in rulemaking.
All of you, all of us we live in a regulatory state today. A regulatory state where regulations touch nearly all aspects of our lives: the quality of the air we breathe, the quality of the water we drink, the safety of the drugs that we ingest. And since we all live in this regulatory state I think it's quite important for all of us to step back and to think about what role politics should play in administrative rulemaking. Thanks Lenny no problem. Lenny often does this in my classroom. You just hit a button and Lenny appears in the classroom. Call Lenny and he's there to help us. This is the kind of amazing staff I'm talking about that we have here. So as I said my goal is to get you to stop and think what role should politics play in this regulatory state that we live in? My own view as you hear me discuss with you today is that rulemaking can't be all about politics and it can't be all about expertise. The trouble is finding that middle ground, how we navigate or how we mediate the line between expertise and politics in administrative rulemaking. And it's something that also I will discuss with you administrative law really hasn't been able to get a good handle on. It hasn't been able to get a good handle on the subject that's part law and part politics.
So what I want to do to start today for those non-lawyers in the room since we do have a good group of non-lawyers or for those students in the room who haven't yet taken administrative law is start by talking briefly about what rules are and where they come from before I get more into the heart of my talk. So for this of course we are going to start with the Constitution at the top of our legal pyramid which allocates our power in our country into our tripartite governmental system. And most importantly for purposes of understanding our regulatory state if the Constitution that empowers Congress are elected representatives to make ordinary statutes.
Now statutes they sometimes speak with great specificity to the question that necessitated the legislation in the first place. But often that's not the case. Often Congress punts. Often Congress speaks with a very broad brush really leaves tremendous gaps in the statutory regime; gaps that are left unresolved in Congress then delegates, hands away power to administrative agencies and asks the administrative agencies to fill the gap in the statute. Gaps that Congress might have left unresolved because the issues were too complex, too technical or maybe too much of a political hot potato in Congress didn't want to resolve the issues for itself.
So to concrete examples of that to show you. One the occupational safety and health act of 1970. In this statute Congress passes statute and what it's seeking to do, it's seeking to ensure safe and healthful working conditions for men and women across the country. In the statute Congress didn't buy its own rights determine what would be required. It didn't by its own rights set forth in with great specificity what helpful and safe working conditions were rather, it punts right it delegates here to the secretary of labor. And it tells the secretary of labor that the secretary of labor is to try to set standards, rules that will set forth what is reasonably necessary or appropriate to provide safe or healthful employment in places of employment.
Similarly another example of this, the clean air act. Congress could have decided what specific levels, what specific air-quality standards would apply across the country but instead it delegates. It hands away power to the EPA, the environmental protection agency and it tells the EPA rather than having Congress do it itself to set standards and by statute these standards need to ensure that we are going to have standards that are requisite to protect the public health with an adequate margin of safety.
So this is of course where regulations and our regulatory state comes in: regulations or rules as they are often called they fill the gaps. They answer those questions that Congress left unresolved. At the federal level regulations come from our alphabet soup of administrative agencies. The SEC, the NLRB, OSHA of the FTA, the newly formed CFP be consumer financial protection Bureau which we are all seeing splashed across the newspaper recently. These agencies, the heads of these agencies, those who run the agencies they are not directly elected by the people. Instead they are indirectly politically accountable. They are in directly accountable via political control that the president and Congress can exert over them. Control via the appointment and removal process, the power of the purse, oversight hearings, many other political control mechanisms but they are not themselves directly, politically accountable. Despite the fact that they are only indirectly politically accountable these regulations but they make, filling in the holes in the statutes, they are legally abounding and they have the force and effect of law. Just like statutes do. So for example agricultural workers they have to obey OSHA's regulations that set forth with great specificity that hand washing stations and toilets must be placed within 1/4 mile of the hands laborers place of work. Or the American Red Cross must comply with rules promulgated by the FDA speaking to blood safety rules at the risk of sanctions or finds for failing to do so.
These rules, these regulations made by agencies carry this legally binding affect even though the rules don't go through the normal legislative process that statutes would go through requiring bicameral is him and presentment instead they go through what's known as notice and comment rulemaking. Where the agencies issue a notice, solicit comments from those who are interested in then issue the final rule accompanied by a statement of basis and purpose which justifies the rule and response to significant comments for seat.
So today when we look at this legal pyramid and we think about where did the bulk of new binding legal norms come from at the federal level in our country? Certainly it's not from new changes to the Constitution or at least formal amendments to the Constitution. When we think about the Constitution in an amended just 27 times and since it went into effect in 1789. It's also not from statutes, ordinary statutes. When we think about the last Congress the hundred and 12th Congress which granted was the Congress that didn't get quite as much through some other congresses only 238 statutes enacted in the hundred and 12 Congress rather where do most of our binding legal norms come from? Regulations, they come from regulations- this kind of subordinate lawmaking operating outside of the normal legislative processes. In 2011 alone we had more than 3800 new rules published in the final register-a large number of rules coming from this regulatory process. So this important aspect of law in our country the regulatory aspect in our country, regulations have existed since the beginning of our country but really they didn't peak, it didn't surge, rulemaking as being the dominant form of regulation in our country until the 1960s and 70s. It took off in the 60s and 70s.
When it took off, a sort of tension was revealed the tension between expertise on the one hand in politics on the other hand. Why was this tension revealed? Because our modern administrative state as we now know it, many agencies that make up the modern administrative state, they were formed in the progressive and new deal areas when the common prevailing view at the time was that agencies and agency administrators were expert driven bureaucrats. They were political professionals. They were men bred to the facts, people would say. They would make decisions based on expertise. This was what was info that the formation of our modern administrative state. Then in the 1960s and 70s agencies started engaging in large amounts of rulemaking. Rulemaking becomes our dominant form of regulation. And at that point in time we start to see wait a minute these agencies are making what look like policy driven judgments. As presidents noticing this try to exert more control over the regulatory apparatus forming offices like the Office of Management and Budget within the White House to try and exert control and oversight over the regulatory apparatus.
So here emerges this tension between this notion of expert driven decision-making and policy driven judgments and politics in the rulemaking process. This tension has persisted for the last 50 years or so and sometimes it will, often it simmers beneath the surface. Often it is outside of our eyes. When we pick up the papers we don't see it. But occasionally it splashes out there into the headlines in a way that we all get some access, some glimpse into this clash that's going on beneath the surface of rulemaking. And I want to give you two concrete examples of that to try and make it really clear how very live in real this clash between expertise in politics is.
The first example I want to give involves the Bush administration and its involvement in global warming, regulation to combat global warming. The second example I want to give involves the Obama administration and the Obama administration's treatment of air-quality standards involving smog. So let me start first with the global warming example. In terms of global warming during the Clinton administration questions arose, many questions arose about whether the EPA had the authority to regulate certain emissions including CO2 emissions that lead to global warming. And the question was whether the clean air act gave the EPA the legal authority to regulate. In 1998 again in 1999 under the Clinton Administration the EPA's General Counsel said yes we do have the legal authority to regulate under the clean air act. So in 1999 a number of organizations filed a petition for rulemaking with the EPA and they asked the EPA to engage in rulemaking, to regulate these sorts of emissions that lead to global warming. So what happened is in 2001 that the EPA requested comments. They received more than 50,000 comments on the petition. And then finally in 2003 the Bush administration rules on the rulemaking petition and it denies the rulemaking petition. It gives two main reasons for denying it. First it says contrary to the opinions of the EPA's legal counsel under the Clinton administration we have now determined we don't have the statutory authority to regulate. And second if we did have the statutory authority to regulate we would decline to do so at this time for a variety of policy driven reasons for example we don't want to step on the president's toes in the form policy arena. Science is a bit uncertain and we want to avoid piecemeal legislation or piecemeal regulation in the climate change context. The EPA's denial of the rulemaking petition was challenged in court and it worked its way up to the US Supreme Court as you may remember reading about the decision. The court issued its decision in Massachusetts versus EPA in 2007 and it wasn't ideologically split 5/4 decision with my former boss Justice Stevens writing for the majority. Justice Stevens in the majority opinion rejected the EPA's reasons for declining to regulate and effectively told the EPA go back to the drawing board, user expertise, think about this again. Newspapers picked up on the opinion and sort of trumpeted at this blockbuster when in favor of combating climate change. But the reality is really all that the court decision did is send question back to the political processes. So what happened once it got into the political processes? Well the EPA to go back to their drawing board. They took a look at it again. Try to use the expertise and at this time said we do conclude these emissions endanger the public health and welfare and they should be regulated. Based on this conclusion the EPA sent a draft of the proposed regulations over to the White House for review to OMB Office of Management and Budget for review. What happened then? Well the New York Times reported on it. Here is the article. This is what the New York Times tells us happened. The White House in December went so far as to say that it wouldn't open the e-mail document from the EPA that contained the proposed rule. The White House in December refused to accept the EPA's decision that greenhouse gases are pollutants that must be controlled, telling agency officials that an e-mail message containing a document would not be opened.
So what happened? Well EPA and the White House engage in more back and forth, back and forth and eventually what the EPA under the Bush administration decides to issue is not a proposed rule but what's known as an advanced notice of proposed rulemaking telling the public we'd like your comments because were thinking we might issue a proposed rule and would like your comments on that. The clock ran out. We get a new administration in the Obama administration before we finally see the EPA issue and endangerment finding and conclude these emissions do endanger the public health and welfare. So that's concrete example number one of why this clash is very alive between politics and expertise.
Second example I want to give you involves the Obama administration. Lest I be accused of suggesting that this is a trend that impacts only one type of administration or another. It doesn't. It's pervasive. So the second issue involves Obama administration and smog standards. So here were talking again about the clean air act and one thing that the clean air act does is it's requires the EPA to set what are called NAQS national ambient air quality standards in these NAQS the EPA has to review and if appropriate revised every five years. And the primary standards under the NAQS one of the things that they have to do is they have to settle level that is requisite to protect the public health with an adequate margin of safety. So in 2008 at the end of the Bush administration the Bush administration set the NAQS at .075 ppm which is more lenient than the .06 to .07 ppm range that had been recommended by CASAC clean air scientific advisory committee an expert body that advises the EPA. So there was a challenge filed to the standards that had been set by the Bush administration and the Obama administration agreed to reconsider the standards set by the Bush administration. And so what the EPA then did under the Obama administration is they proposed a standard that would be more in line with the expert body’s use the .06 to .07 range. They propose to this rule, they held hearings. They got public comments from the public. The comment period closes and so EPA then transmits the final standard that it wants to issue to the White House. The White House Office of Management and Budget while the draft rule is under review there is lots of back-and-forth with environmentalists, business groups are lobbying the White House. September 1 comes president Obama summons Lisa Jackson the head of EPA into his office. Lisa Jackson comes in president Obama says to her you are not going to issue this ruling now. You might have a chance to revisit the smog standards in 2013 after the reelection should we win but not now. Then the next day he did something very unusual. He publicly takes credit for the fact that the EPA is going to postpone the smog standard. He publicly says this, "I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty particularly as their economies continues to recover. With that in mind I have requested the administrator Jackson with draw the draft Ozone NAQS at this time." The very same day as this we also get a letter from Cass Sunstein. Cass Sunstein is the head of OIRA an office within OMB. And Cass Sunstein says in his letter to the EPA, "the president has instructed me to return this rule to you for reconsideration. He has made it clear that he does not support finalizing the rule at this time." So both Sunstein’s return letter which was highly unusual and president Obama statement made it very clear that president Obama wanted to take public credit, political credit for pulling the plug on the smog standard. That was quite clear that that was going to be what was happening. So to the EPA listen? Of course it wasn't. The EPA postponed consideration of the smog standard. That was challenged in federal court. In February 2012 the DC circuit said we don't have jurisdiction because this isn't a final agency action. It's just a mere postponement of the smog standard. So they said no jurisdiction decided. That someone gives me a little bit of glee because as a law professor it means no court ruled on the question of whether it's constitutional or legal for president Obama to be involved in the EPA rulemaking process the way he was. It leaves the question open. And so the interesting thing is given that rulemaking really has been the dominant form of regulation in our country since the 60s or 70s as I was describing earlier it's quite interesting that we don't really have a clear answer in 2013 to this question of whether it's constitutional or unconstitutional, legal or illegal, desirable or dangerous for us to have such political control in our rulemaking processes.
As this cartoon I think quite nicely shows… Whoops I missed something I wanted to tell you. This happens sometimes in class. This is part of the story and I jumped ahead. One other part of the Obama story is the New York Times explained his shift to us. In the New York Times explained the shift by saying it was tied to reelection strategy and in fact the New York Times said that one group the American petroleum Institute brought maps to the White House showing how the states that Obama had one would be out of compliance with the new standards and this is what the maps looks like. Right so that's also part of the back story on that.
So this uneasy tension that I was describing I think that this cartoon quite nicely sums it up. We've got this really uneasy relationship between scientists, agency actors, governmental actors, politicians, the media, the public and the fascinating to me as an administrative law professor is the administrative law really has yet to provide us with a clear legal framework for how to navigate this relationship. And it's tough for administrative law to get its hands around not given the administrative law is very much part law, part expertise and part politics. So that's where some of my former scholarship has come in and that's where more of my scholarship I hope in the future will continue to go. Is figuring out how might we better mediate and navigate this uneasy line between law expertise in politics in rulemaking.
The most predominant solution that often appears in pops out is one that's referred to as expertise for seat. You see some presidents, Pres. Obama in his inaugural address in 2009 for example sometimes Congress in oversight hearings often scholars sometimes courts in decisions like Massachusetts versus EPA you often see them engage in an expertise forcing where they are basically trying to force agencies to exercise their expertise and to push politics out of the calculus. To try to excise politics, the dirty part of rulemaking from the process. In my scholarship I have explored some and hope to continue to explore why I'm not convinced that that is necessarily the right solution or the best solution.
One reason why I think it's problematic is that as the Obama smog standard helps to illustrate even in administration like Pres. Obama's administration that is openly committed to protecting the integrity of science can't really excise politics from the rulemaking process. They are always going to be there. Politics will always be there. So in my mind it's futile to try to come up with a system where we try to excise it from the process.
Second even if we could, even if it was conceivable to excise politics from the process I think it would be undesirable to do so as a matter of political theory. Agencies make decisions that touch all aspects of our lives ranging from environmental law matters, public health matters and we let them do this by emphasizing that they are politically accountable to political actors like Congress and the president. We justify as I say to my students the existence of this fourth headless branch by stressing that agencies are subject to political control. My own legal hero Justice Stevens recognized as much in his famous Chevron decision in 1984 when he said that although agencies are not directly accountable to the people the chief executive is and so it's entirely appropriate for agencies rely upon the incumbent administration's policy judgments and point of view.
Third I worry that if we require agencies to justify their decisions solely in expert driven terms were driving politics underground. That's the world we live in today is these political influences other than in situations like these two examples I give you today they often exist under the surface. So were undermining transparency. We’re sticking our heads in the sand. That's a concern of mine with our current expertise forcing solution that we often seek today.
Fourth I also worry that we are tainting or suppressing science by trying to engage in expertise forcing and not giving politics its own accepted place. Numerous cartoons illustrate this. This one says, "Drat those pesky scientific facts will line up behind my beliefs." The response is, "then challenge them stew we." This one, "scientific truth deny, mislead, rejects, suppress, progress any other direction.” These cartoons show how it politics isn't given any appropriate place of its own it bleeds into the science and we risk tainting and subversion or oppression of science which is troubling to me.
Finally, fifth science and the expertise often can't give us all the answers. Often were left with unknowns and agency regulators have to regulate in the face of scientific uncertainty in the face of the lack of perfect knowledge. And it's here the policy judgments come into play in a chair that it seems like we should enable them to come in to play.
So do all of these arguments that I've just listed out suggest that instead of an expertise forcing approach we should move towards one that's all about politics, of course not. That would allow expertise in the rule of law to be thwarted. And so that's why I say where we all have to focus our time is figuring out what some middle ground? What's that middle ground where we can navigate and allow both to play a role, both expert driven judgment and political judgment? The challenge for me as an administrative law scholar and really I think the challenge for all of us since we all live in a regulatory state today is trying to figure out how we embrace the role politics and how we figure out a way to accept the expert judgment and political judgment both bring something valuable to the table even though both have their own limits.
So with that I have finished my job of talking and I do hope I finished my job before you finished your own of listening. Thank you so much again Dean Testy for this marvelous honor. Thank you to Garvey Schubert Barer and thank you to all of you so much for your support and for coming today.

Dean Kellye Testy

Kathryn thank you so much. A wonderfully characteristic example of her scholarship: taking on issues that matter, doing an amazing job that kind of wrestling them to the points that are going to make a difference in presenting them just so clearly and with wonderful examples. So And I want to congratulate you again on being the Garvey Schubert Barer professor and I also want to congratulate this law school. We are so pleased that you are one of our colleagues in the words to all that you being here will bring forward in the years to come. Just love being here with you again think you so much.
I want to also say a quick thank you to the Garvey Schubert Barer firm. I see so many of you here and Stan Barer is also here. I don't know if can Schubert was able to be here tonight. I haven't seen him but I just want to say a special recognition to you Stan and Mike I'm so pleased that you were able to be here and share some of your thoughts about the firm and the motivation to establish this wonderful professorship.
I also want to let everyone know that we are going together now in room 115 for reception and so I hope that you all adjourned Erin join us to visit with Prof. Watts and for those of you that are here from the firm we would like to ask you to please pause outside of the room just for a minute and we would like to get some photos of the members of the firm who are here today along with Prof. Watts. Peter I want to thank you also for that wonderful introduction and all of you for being here tonight at the University of Washington school of Law. We will continue to aspire very highly to that standard of excellence that Garvey Schubert Barer firm and Prof. Watts have all embraced. Thank you very much for coming and I'll see you in room 115.

Last updated 2/6/2013