Focus on Streamlining Rulemaking Process

Ronald M. Levin

Next fall, in Browner v. American Trucking Associations Inc., the U.S. Supreme Court will revisit a classic administrative-law controversy: whether the Constitution limits Congress' power to delegate policymaking power to administrative agencies. This Clean Air Act case will doubtless fuel debate over whether the "nondelegation doctrine," which has been nearly moribund for more than 60 years, should be reinvigorated.

Realists acknowledge, however, that history has long since settled the basic question of whether Congress can delegate its lawmaking authority. That power exists because it must exist. In an advanced society of more than a quarter of a billion people, how could Congress make all the important decisions itself?

Regardless of whether the court holds in American Trucking that some vestige of the nondelegation doctrine survives, the law's most significant bulwarks against abuses of administrative authority will continue to lie elsewhere: in political controls, procedural requirements and judicial review. The outer boundaries of these safeguards are constantly in flux, and the Section of Administrative Law and Regulatory Practice is deeply engaged in examining them. Its agenda for the coming year reflects this goal.

First, the centerpiece of Congress' controls over the administrative process is the Administrative Procedure Act (APA). The APA serves the public well, but decades of adaptation and interpretation have rendered many of the act's requirements increasingly complex and challenging to apply.

The section is conducting a multiyear review of the APA. The project will not only summarize APA case law and other developments, but also will consider possible amendments to bring this 50-year-old legislation up-to-date. Initial drafts of several chapters are already posted at http://www.abanet.org/adminlaw.

Second, a major priority of the section is to encourage Congress and the executive branch to harmonize and streamline the maze of requirements governing the rulemaking process. At present, rulemaking agencies must often comply with procedures found in as many as a dozen distinct statutes and executive orders. Unfortunately, agencies sometimes respond by eschewing the rulemaking process in favor of less open modes of decision-making. Of course, important governmental decisions must be carefully considered, so a balance must be struck between efficiency and thorough, careful inquiry. At the very least, however, redundancies and conflicts between competing procedural mandates should be weeded out.

Third, increasing delays in the process of appointment and confirmation of agency officials hinder the government's ability to carry out its programs. The section is studying ways to induce the process to move more expeditiously.

Fourth, there is a continuing need for a successor organization to the Administrative Conference of the United States, which Congress terminated in 1995. A new entity is needed to recommend improvements in the administrative process and to enable agencies to learn from each other.

The most promising solutions to deficiencies in agency performance lie in practical measures such as these-not in constitutional theories that belie the reality of an administrative state.

Levin is chair-elect of the Section of Administrative Law and Regulatory Practice and is the Henry Hitchcock professor at Washington University School of Law, in St. Louis.

Antitrust Law

Five New Task Forces Tackle Variety of Issues
Ky P. Ewing Jr.

Antitrust law is on America's front pages, thanks to the proposed breakup of Microsoft Corp. The daily dose of megamergers and criminal fines imposed on price fixers intensifies the relevance of antitrust enforcement in light of the Information Age and the Internet, the speed of change in society and the explosion of merger activity.

The ABA's Section of Antitrust Law, with 9,000 members, is the largest publisher of antitrust materials. The section's Spring Meeting, with some 1,600 attendees, is the world's largest gathering of the antitrust community.

In the July 2000-August 2001 year, the section will continue its traditional activities and also will bring its professionalism to bear on the current debate through five new task forces. Participating are three federal judges, eminent academics, former heads of the antitrust agencies and distinguished practitioners, as well as the chairs of the regular committees of the section and all council members.

The Task Force on Fundamental Theory is examining the largely discredited concentration theory. As the U.S. Supreme Court recently emphasized in California Dental Association v. Federal Trade Commission, in the future "assumption will not do." This task force will try to suggest alternatives and to identify the questions relating to merger control.

The Task Force on the Concepts of Time, Change and Materiality, with certain sectors changing more swiftly than others, is asking hard questions, such as how long government should wait for new entries to solve competitive problems in different sectors; how material to society the harm to competition should be, to justify central government intervention; and how intellectual property rights should be dealt with.

The Task Force on Civil Antitrust Litigation is addressing how to make the litigation of complex antitrust issues manageable and timely, as it confronts a system in which two federal agencies, state attorneys general and private litigants can all bring antitrust lawsuits.

The Task Force on the International Competition Policy Advisory Committee (ICPAC) Report is analyzing the recommendations of the February 2000 Report to the Attorney General about improving U.S. and international antitrust enforcement. This task force will, in particular, look at differing merger control regimes globally.

This task force will recommend how the section might help remedy problems and advance rational development of antitrust principles globally.

Finally, the Task Force on Attorney-Client Privilege is dealing with the differing rules on the privilege in different countries, with in-house lawyers, for example, being denied coverage in the European Community.

In short, the Antitrust Section is bringing its long tradition of scholarly work to bear on the issues spawned by an economy that is reinventing itself globally in the electronic information age.

Ewing, chair-elect of the Antitrust Law Section, is a partner in the Washington, D.C., office of Houston's Vinson & Elkins L.L.P. He was formerly the deputy assistant attorney general in the Antitrust Division of the U.S. Department of Justice.

Business Law

A Look at E-commerce and Global Practices
Amelia H. Boss

With the advent of the new, high-speed means of communication, businesses are no longer constrained by physical or legal boundaries. Increasingly, companies are realizing that to retain their competitive advantage, they must embrace new technologies and venture into the global world of cyberspace.

The Section of Business Law recognizes the need to adapt to the challenges presented by e-commerce. Practice is now global, rather than parochial, in scope; technology issues affect all substantive areas of the law; and the law must adapt to accommodate emerging e-commerce practices and cross-border transactions.

One part of the response to these challenges is to contribute to the development of the rule of law throughout the world, creating a supportive environment for international commerce. The Business Law Section provides technical legal assistance activities all over the world, from China (where the section has been actively involved in the establishment of a Business Law Center in Beijing, in conjunction with an LL.M. program for Chinese lawyers started by Temple University), to Africa, to Eastern Europe. The section is also assisting in the preparation of training materials on electronic commerce for the United Nations, to be used in developing countries.

An additional key to a thriving economy worldwide is the establishment of a coherent and harmonized legal framework that allows trade to be conducted internationally with minimal disruption arising from inconsistent or nonexistent legal systems. Unification efforts at the international and regional levels are contributing to the development of such a framework: The U.N. Commission on International Trade Law has work under way in the area of electronic commerce, digital signatures, international arbitration, international insolvency and accounts receivables financing. Similarly, the Institute for the Unification of Private International Law (UNIDROIT) has been pursuing the area of security interests in mobile goods and the establishment of centralized international filing systems.

As these efforts proceed, it is important that attorneys practicing in the United States be aware of those developments. The Business Law Section is playing an increasingly important role in these international unification efforts. Similarly, the section and its members are continually involved in domestic law reform, both at the national and state level.

With specific reference to the Internet and international e-commerce, the section has been the primary sponsor of a thorough, in-depth study of jurisdictional issues in cyberspace. Transactions in cyberspace frequently lack physical contact with domestic legal jurisdictions. Participants throughout the world have been cooperatively studying jurisdictional issues in a host of areas: intellectual property, taxation, sale of services, banking and payments systems, advertising and consumer protection, securities, gaming and public law, and the sale of goods. At the July meeting of the section in London, a 200-page report detailing the findings of the study and making action recommendations to policymakers will be presented. This project, although an ABA project, includes global business partners such as the Internet Law and Policy Forum, the Global Business Dialogue and the Business and Advisory Council to the Organisation for Economic Co-operation and Development.

The section is committed to educating members of the legal profession, as well as the public at large, about legal issues presented by globalization and the growth of e-commerce. For example, in October 1999, the section established Safeshopping.org, which is accessible to all consumers in the United States. The site discusses the perils of shopping on the Internet and offers steps that consumers should follow to protect themselves from unscrupulous and overreaching sellers.

Boss, chair-elect of the Business Law Section, is the Charles Klein Professor of Law at Temple University's James E. Beasley School of Law, in Philadelphia.

Dispute Resolution

ADR's Changing Role in a Global Economy
Ben F. Overton

This is a new age. Technology and the new global economy are moving this country and the world at a rapid pace. The use of alternative dispute resolution (ADR) mechanisms is expanding dramatically, both in the United States and internationally. The Alternative Dispute Resolution Section of the ABA is assuming a major leadership role in developing programs and educating the bar and all interested parties and governments about the benefits of ADR processes.

The section is creating new task forces for appellate and tax mediation. Legislation and ethics are also on the section's agenda. The Uniform Mediation Act, the Uniform Arbitration Act and the Standards for the Establishment and Operation of Ombudsman Offices are all before the section for approval and for early submission to the House of Delegates. In addition, the ABA Ethics 2000 Commission will be proposing ethical rules governing lawyer advocates and neutrals in ADR proceedings.

The section recognizes that this is a global economy and that ADR has an important role to play in it. In the international arena, arbitration and mediation provide a unifying means for resolving international disputes between parties and entities from different countries that is not restricted by jurisdictional or sovereignty constraints. Just as important, ADR can provide a means to resolve these disputes with credibility and integrity that may not be available in some foreign courts.

Although arbitration has been used in international disputes for some time, mediation is relatively new to the international community. The section and its international committee are providing educational programs on mediation to the English and French bars after the 2000 London ABA meeting.

The request for these educational programs indicates a strong interest in mediation. The world has become too small a place for its citizens not to work together to recognize one another's differences and to embrace ideas and ways to resolve their respective disputes in a reasonable manner. The section expects to provide active leadership in developing and fostering mediation and other ADR processes in the international community as an important unifying force to resolve these disputes.

Finally, the section will continue its educational program responsibilities. Strong, cutting-edge educational programs concerned with ADR processes for both neutrals and lawyer advocates are planned for the St. Petersburg-Tampa Bay, Fla., meeting on Dec. 1 and for the meeting to be held in Washington, D.C., on April 26-28, 2001.

The interest of the bar in these types of programs, both domestically and internationally, is strong. This is illustrated by the 800 participants at the section's program in Boston in April 1999, and 1,100 participants at its recent program this past April in San Francisco. More than eight different countries participated in those gatherings.

Overton, chair-elect of the Dispute Resolution Section, is a retired judge and former chief justice of the Supreme Court of Florida, and an early advocate of the ADR process.

Government and Public Sector Law

Eliminating Barriers to Participation
David J. DeVries

The Government and Public Sector Lawyers Division's mission is to serve the needs of the nation's public lawyers. By enhancing the professional development of public advocates, providing meaningful services, and highlighting the extraordinary work of public lawyers, the division works to enhance the position of public lawyers and create camaraderie and pride within the public sector.

This year, division members worked hard to raise awareness about the barriers to public lawyer participation in professional association activities. Barriers can arise through restrictive interpretations of statutes and regulations by agency managers.

Through participation in the bar, public lawyers are able to enhance their legal education and professional development and work with their private sector colleagues to address and resolve issues in a forum that is uniquely suited for such cooperative problem solving. The ABA benefits from public lawyers' insight and experience and should seek to represent all segments of the bar.

In response to this challenge, the division sponsored a policy recommendation, adopted by the ABA's House of Delegates in August 1999, that encouraged government offices to permit government lawyers to serve in leadership capacities within bar associations and to adopt standards that allow them to make reasonable use of office resources and time to participate in professional association activities.

This year, the division worked with ABA President Bill Paul to present a luncheon for federal agency general counsel to establish a dialogue on the benefits of bar participation and how to eliminate the barriers to that participation at the federal level. Luncheon speakers included Deputy Attorney General Eric Holder and former White House Counsel Charles Ruff. The division will continue to work actively on this issue next year.

The division has also worked with law schools to present public lawyer career panels for students interested in the public sector and closely monitored issues involving loan forgiveness programs, especially as the salary differential between the public and private sector has increased dramatically.

The division is also closely watching the development of an emerging practice approach for public lawyers known as community lawyering. The Summer 2000 issue of the division's magazine, The Public Lawyer, explores this topic in a comprehensive article by longtime division member, Roger Conner. At the ABA Annual Meeting in New York, the division will jointly sponsor, together with the Section of Dispute Resolution and the Criminal Justice Section, a program entitled, "The 21st Century Public Lawyer: Problem Solver or Case Processor?"

The program will examine the impact of a community lawyering approach and the implications for future practice in public law offices. The Hon. Richard A. Posner, 7th U.S. Circuit Court of Appeals, will be the featured speaker.

The division remains dedicated to providing representation for government and public sector lawyers who make up one sixth of the legal profession, and it will continue to work to improve the position of public lawyers and provide meaningful services to its members.

DeVries, chair-elect of the Government and Public Sector Lawyers Division, is the Chief Deputy Attorney General for the Office of the Attorney General for the Commonwealth of Pennsylvania.

Individual Rights and Responsibilities

Call for Death Penalty Moratorium Heeded
Michael S. Greco

The unique mission of the Section of Individual Rights and Responsibilities within the ABA is to provide leadership to the legal profession in protecting and advancing human rights, civil liberties and social justice. Through policy recommendations to the ABA House of Delegates and discussions of issues of advocacy and education, the section helps implement the legal profession's commitment to achieving justice, freedom and equality.

The work of the section's council, 20 committees, several task forces and publications is considerable and varied. In the year ahead, the section will focus primarily on further implementation of the section-initiated ABA death penalty moratorium; civil rights and discrimination issues; due process and civil rights of immigrants; privacy rights of individuals in the Internet era; international human rights; and Bill of Rights education.

Response to the ABA's 1997 call for a moratorium on the death penalty has been strong in the United States and abroad. One state, Illinois, has adopted a moratorium, and several others are considering such a move. New Hampshire's Legislature has voted to abolish the death penalty. In 2000-2001, the section will issue its third report summarizing continuing impacts of the ABA's moratorium call. The section also will conduct education initiatives to increase lawyer and public understanding of the issues involved, to improve the professionalism of lawyers handling death penalty cases, and to assist jurisdictions undertaking reviews of their death penalty processes.

Consistent with a core purpose of the section, its Committee on Civil Rights and Equal Opportunity and its Task Force on Diversity will continue their work implementing ABA policies on affirmative action and civil rights issues, with particular emphasis on developments and responses in the field of education.

A new Task Force on Immigration will focus on due process for immigrants and the use of governmental powers against the current immigrant population.

The right to privacy is also a fundamental concern of the section. This right is jeopardized by technological advances and public misperceptions about data collection and dissemination. The section's Privacy Project has two goals: to examine how individuals' privacy rights have been infringed by advances in the Internet and the increased ability to develop vast databases of invasive information about individuals; and to develop a framework for effective protection of privacy rights that will survive future technological advances.

The section will continue its work on international human rights concerns, including initiatives to help achieve U.S. Senate ratification of U.N. human rights treaties, particularly the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), which is a priority for the ABA as well.

At the ABA's Annual Meeting in New York, the section will present a program series on the status of the Bill of Rights to increase public and lawyer understanding about current challenges to long-presumed, but vulnerable, constitutional guarantees.

The program topics of the six-part series include religious tensions in the First Amendment, the criminal justice system on trial, racial justice, federalism and immigrants' rights. The section will use the six programs for an ABA national public education program on the Bill of Rights.

Greco, chair-elect of the Section of Individual Rights and Responsibilities, is a trial lawyer and senior member of Boston's Hill & Barlow and a former president of the Massachusetts Bar Association.

What's Going on at the ABA Part II