Bill Long 10/29/04
Reflections on The Administrative State
It is now more than 115 years since a young political scientist named Woodrow Wilson observed that it soon would be harder to run a constitution than write one. One way to look at the history of 20th (and 21st century) law is to see it as the coming to fruition of Wilson's musings through the creation of the Administrative State. On this date Willamette University College of Law celebrated its (first annual?) administrative law day, with the Honorable Rives Kistler as keynote speaker, to reflect on the way that admimnistrative law shapes the way that law is practiced in 2004.
Meeting Justice Kistler
One recognizes almost immediately upon hearing him that Rives Kistler brings a daunting intellectual firepower to the practice of and interpretation of law. A Williams College ('71) and Georgetown Law graduate, Kistler clerked in the 5th Circuit Court of Appeals, and then, in 1982-83, for the courtly Virginian Lewis Powell of the US Supreme Court. A brief stint at my alma mater law firm (Stoel Rives, though Rives Kistler is not the "Rives" of the firm any more than I am the "Stoel"), combined with a dozen years working in the Oregon Attorney General's Office, among other things, prepared him for service on the appellate courts of Oregon. In his four years on the Court of Appeals and one year, thus far, on the Supreme Court, he has gained the respect of practioners and bench alike for his thorough analysis, keen intellect, and balanced judicial temperament.
Justice Kistler with the Students
And so he urged students to consider careers in public law/administrative law by arguing that it was precisely in working on administrative law issues with the Attorney General's office that he realized he was shaping law that would affect more than just the single parties in a dispute. In addition, it was an early case on "improper contact" between a naked dancer and patron that showed him that details of adminstrative law often carry in their wake massive constitutional issues (such as the interpretation of art. 1 sect. 8 of the Oregon Constitution) that will eventually be determined by the state's highest court. In addition, the collegiality of relationships in public law differed considerably from the more hierarchical systems of private law. His experiences with then-AG (and now U of Oregon President) David Frohnmayer, where the AG would tell him to be the best broker of the law that he could even when dealing with controversial issues, remained vivid experiences in his mind.
Justice Kistler on Administrative Law
He then told stories of his judicial experience with administrative law issues, ranging from the Chada case at the US Supreme Court to the more recent exclusion of Ralph Nader from the Oregon ballot by the Oregon Secretary of State. In the former, he observed how the Legislative Veto was disallowed, but felt that Justice Powell's nuanced approach which would allow certain instances where its power could still be exercised, would be helpful.
In the Oregon Kuchera case, he pointed out a unique statutory distinction between the rule making and the directive-giving power of the Secretary of State's Office which led the Supreme Court to uphold the Secretary's decision to disallow several signature petition sheets because of improper signature. While this statutory distinction really evokes many questions, such what it means, how it differentiates the Secretary of State's office from others, how a directive relates to a rule, etc., time didn't permit an exploration of these.
It has seemed to me for several years that the crucial question in Administrative Law is what kind of "deference" is accorded to an agency process and decisions by a court. Justice Kistler recognized that "deference" is a weasal word, a word that can be appealed to by a modern judge much like the phrase "police power" was 100 years ago. But coming to grips with the nature of judicial review of agency decisions has to be at the heart of how we conceptualize Administrative Law.
Thus, the central task of judicial review of administrative law judging is now a philosophical one or, framed differently, is a process of demystification. Where do we start? I would have every judge who reviews administrative law decisions to read (or reread) Justice Holmes' 1897 essay "The Path of the Law." Then, we would be ready for a another discussion on the role of Adminstrative Law in the modern state. Thankfully, Justice Kistler's helpful presentation provoked many of these ideas.
Copyright © 2004-2007 William R. Long