Admin Law in Practice: Thoughts to a 2L from a Young Practitioner

Adam Scott Kunz
I envisioned stuffy admin lawyers, with tweed suits, sitting around in moldy offices with massive stacks of rule comments in front of them.

I envisioned stuffy admin lawyers, with tweed suits, sitting around in moldy offices with massive stacks of rule comments in front of them.

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The Chevron doctrine. The Administrative Procedure Act (APA). Goldberg v. Kelly. When I took admin law as a 2L, I assumed that administrative lawyers wrestled with the nuances of these and other banner issues that find their way into the average administrative law text. Sitting at the feet of Dick Pierce as he explained, in his trademark booming voice, the difference between agency action and inaction, I envisioned stuffy admin lawyers, with tweed suits, sitting around in moldy offices with massive stacks of rule comments in front of them.

After a couple of years of practice—and still a young lawyer myself—I’ve come to realize that administrative law is anything but a specialty. Instead, as one who spends his days in litigation over cases ranging from white-collar crime to attorney malpractice to massive products liability actions, I see that administrative law is less a discrete subject and more like a vine, winding its way into nearly every area of practice.

If that’s the case, why study administrative law on its own then? More to the point, what should a 2L, finding herself staring down at a copy of the APA, be getting from a course fixated on administrative law? I can think of a few things.

Focus on the Forest

The concepts in administrative law are indeed a forest, chuck full of nuance. And if you let yourself, you’ll end up like Bilbo Baggins, swept off on some adventure that you never signed up for. Instead, keep the end in sight: What is a rulemaking? When is an agency adjudication final and reviewable? What level of deference applies here? These broad generalizations will keep you grounded when you inevitably encounter a case or rule about which you are unsure.

Be Pragmatic

I can’t tell you how many times I’ve used an administrative law concept in practice. Rulemakings and adjudications are constantly referenced or relied upon. In one piece of litigation alone, I recall references to decisions of at least three separate agencies, both at the federal and local levels. While studying administrative law as a discrete subject, keep asking yourself: What can I do with this? How would this be used as a tool someday? You already know how to do that with cases. Why not extend it?

Get Back to Basics

I remember spending a whole lot of time bathing in the froth of the argument in all of my law school courses but particularly in administrative law. And for good reason—there was a lot to argue. But one of these days, these concepts are going to become all too real when you have a client (either an individual or an entity) asking for your advice about what to do about X problem, and you’ve realized that Y concept from administrative law might be relevant. For that reason, it’s a good idea to always revisit the basics. What is the responsibility of an executive branch agency? What’s its relationship with a state or Article III court? How do funding and legislative action affect this agency in real terms?

I’m coming to realize that my vision of administrative law is very different in practice. My image of administrative lawyers has been replaced by my colleagues: average, hard-working folks who are looking to apply any tools they can get their hands on to solve real problems. And I’ve yet to end up in a moldy office looking at a massive stack of rule comments.

Though, I do own a tweed suit.

To learn more about administrative law, please visit the ABA Section of Administrative Law and Regulatory Practice

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Adam Scott Kunz

Adam Scott Kunz is a full-time lecturer at California State University, Monterey Bay, in the School of Humanities & Communication.