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CHAIRMAN'S MESSAGE: The Year AheadSource: Administrative Law Review, Vol. 36, No. 4 (Fall 1984), pp. v-viiPublished by: American Bar AssociationStable URL: http://www.jstor.org/stable/40709273 .
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CHAIRMAN'S MESSAGE
The Year Ahead
CHARLES D. ABLARD
one of these columns two years ago, my predecessor, Bill Allen, asked what the Sec-
tion would be doing after we didn't have the legislative veto "to rail about." In a way he was too optimistic since, although we don't have the legislative veto with us, we have several post-Chadha developments which concern us and on which our Section will be focusing next year as we enter the second half century of our existence as both a section and a special com- mittee.
In addition there is plenty to keep us busy for the coming year on subjects of concern to the bar, the bench and the government. One of them was discussed in depth at our August Council meeting in Chi- cago. The subject was standards for judicial review of agency decisions and is the focus of a study and report being developed by the Section's Committee on Judicial Review, chaired by Ron Levin. The report considers standards for judicial review and suggests a new framework for analysis of how courts should look at agency action and questions whether the old rubrics of "arbitrary and capricious" and "substantial evidence" are meaningful and helpful or whether there are better standards.
Two other areas of study will also receive our attention during the year. One is the proposed creation of a Corps of Administrative Law Judges, which has taken form in S.1275 offered by Senator Howell Heflin of Alabama. This concept has been written about in the past and has been the subject of agency and bar discussions.
A second topic concerns the Section evaluation of a proposal from the ABA Standing Committee on Judicial Improvements to create an Article I Disability Court to review social security and veterans' disabil- ity decisions. This proposal has taken on new meaning in light of the crisis in social security cases in the federal courts and the efforts in
v
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vi CHAIRMAN'S MESSAGE
Congress and the Executive to reduce and evaluate more carefully the granting of disability benefits.
In addition the Section has several substantive programs which we will be holding during the year. The first was the October program concerning International Debt and Bank Capital Regulation with spe- cific attention to the regulatory framework. This program was de- veloped from a study which was undertaken by our Section Committee on International and Comparative Administrative Law. Other pro- grams are being planned for the Mid- Year Meeting in Detroit includ- ing one on Alternative Dispute Resolution.
All of these topics take on new relevance when we ponder compara- tive evaluation of our legal and judicial system with those of other nations. This is a subject in which we all share an interest particularly as we look forward to the 1985 Annual Meeting in Washington and London next July. This area of concern took on special meaning for four of us from the Section who were a part of the eight-member American team for the Anglo-American Legal Exchange of 1984, which considered "Judicial Review of Administrative Action." The four members of our Section who participated at the invitation of the Chief Justice were Judge Antonin Scalia, former Section Chairman; Dean Paul Verkuil, Council Member; Chairman Loren Smith of the Administrative Conference of the U.S.; and me. The Exchange, held this past July in London, afforded us the privilege of observing the British system in action and allowed us to compare notes with our British counterparts on their concept of natural justice as compared with ours of due process.
One aspect of the British system which we found to be of special interest was the use of lay members on tribunals, their equivalent of our administrative agencies, who provide some new "attitudes" if not expertise. Another area of sharp contrast is our open process of rule- making as prescribed by the Administrative Procedure Act compared to the near total discretion allowed the British executive in rulemaking for departments. This was emphasized by their lack of a written admi- nistrative procedure act as compared with ours of 1946, a further extension of the difference in constitutional format which exists be- tween our two nations.
Limitations on the appeal process were of interest to the judicial members of the team, which included, in addition to the Chief Justice, Justice Sandra Day O'Connor and Chief Judge Howard Markey of the Federal Circuit. The extent of oral argument on appeal was another major difference, described by the British as their "excessive orality." The extensive nature of their oral argument was in sharp contrast to its
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CHAIRMAN'S MESSAGE vii
near total absence in almost any court except the Law Lords of the House of Lords, where there is now at least a brief summary filed for the benefit of the judges.
All of this is further grist for the mill as we prepare for our London program next July 17-19, which will focus on judicial review, tribunals and their membership, financial institutions and law reform move- ments in the respective countries.
The other interesting development as we begin this year is the newly increased role of the sections in ABA governance. The change in the Association's rules gives the sections five additional members on the Board of Governors, a very important new power base for exercise of influence on Association management and policy. This achievement is due in no small measure to the considerable efforts of our Board of Governors Liaison, Marion Edwyn Harrison and former Section Chairman, Judge Antonin Scalia, who served on the Commission on Association Governance.
Thus, we enter an exciting new year and one which offers many opportunities for practitioners of administrative law.
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