October 23, 2018

Regulatory developments and ethics pitfalls among topics at ABA Administrative Law

WASHINGTON, Oct. 23, 2018 — Legal experts and former and current U.S. government officials from regulatory agencies will offer insight on regulatory reform, deregulation efforts and the latest on ethical issues during the American Bar Association’s 2018 Administrative Law Conference on Nov. 1-2 in Washington, D.C.

This conference includes panels exploring presidential tweets and congressional oversight of the federal bureaucracy. Attendees and panelists include former and active federal judges and officials from government agencies, including the Department of Justice, Environmental Protection Agency, Administrative Conference of the United States, Department of Energy, Transportation Security Administration, Department of Transportation and Office of Information and Regulatory Affairs.

Administrative Law Conference, sponsored by the ABA Section of Administrative Law and Regulatory Practice

Thursday-Friday, Nov. 1-2, 2018

Walter E. Washington Convention Center
801 Mt. Vernon Place NW
Washington, D.C. 20001

Program highlights include:

“Agency Justification Strategies for Regulation and De-regulation: Battlegrounds and Best Practices” — The first two years of the Trump administration have witnessed a concerted effort by the White House and multiple agencies to slow the flow of new regulations and roll back existing ones. This panel will survey the legal and analytic strategies used or proposed to further this de-regulatory effort. Are they sound policy or ploys to rationalize departure from sound policy?  Thursday, 9-10:45 a.m., East Salon A/B.

“Fake Views?: Fraud and Spam in Public Comments on Proposed Rules” — In recent years, federal agencies have received increasing numbers of comments on certain highly salient proposed regulations. However, in some instances, those comments have been submitted fraudulently using another individual’s name or with the aid of technology that facilitates the sending of mass quantities of duplicate comments simultaneously. Organized interests already can submit large quantities of nearly identical “mass” comments, and technological advances may soon enable the automatic customization or total fabrication and submission of comments. When confronted with massive quantities of comments, agencies face challenges in ensuring that they adequately consider and address relevant information when finalizing their rules. This panel will explore issues related to how agencies process and evaluate comments during the rulemaking process, focusing on potential problems raised by mass and fake comments. Thursday, 1:15-2:45 p.m., East Salon A/B.

“Are Those (Presidential) Tweets Part of the Record?” — The president has a habit of making pronouncements, often by tweet, that are not so easy to square with official justifications for his actions — as notably demonstrated by litigation regarding executive orders and a presidential proclamation restricting entry into the country that culminated in the Supreme Court’s decision in Trump v. Hawaii. A member of the counsel team for Hawaii and three leading scholars of administrative law discuss implications and challenges that this practice creates for administrative law both in the specific context of the Hawaii litigation and more generally. For instance, under what circumstances should courts take into consideration communications by government officials that contradict or undermine official justifications for government action? Where courts consider such communications, how should they assess their significance? When can an improper motive block action that is facially reasonable, and perhaps important? Can time, or anything else, cure such problems? The discussion should be of broad interest both for its focus on one of the most controversial cases to reach the Supreme Court in recent years and for the light it sheds on how the concept of an “administrative record” may evolve in the age of social media. Thursday, 3-4:30 p.m., Room 202.

“Lucia’s Aftermath: ALJ & AJ Job Security and Independence” — The highly anticipated case of Lucia v. SEC resolved a potentially game-changing issue: whether SEC ALJs were inferior officers. The outcome was hardly surprising, especially given the solicitor general’s decision to switch sides after Lucia’s petition was filed in the Supreme Court. Yet the case fizzled, why? The panelists will explore Lucia’s ramifications and the implications of the new hiring practices. Friday, 1:15-2:45 p.m., Room 202 A/B.

A complete agenda can be found online.

This event is free and open to members of the press. For media credentialing, please contact Jennifer Kildee at Jennifer.Kildee@americanbar.org.

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