My name is Philip J. Harter. I am the Earl F. Nelson Professor of Law at
the Center for the Study of Dispute Resolution at the
I would like to provide a bit of my background since it
forms the perspective for the observations that follow. To a very real extent, the Administrative
Conference has determined the course of my professional life. Thirty five years ago right now I was a research
assistant to Professor Roger Cramton at the University of Michigan Law
School. The project we were working on
ultimately became ACUS Recommendation 2, and Professor Cramton became Chair of
ACUS. I later became Senior Staff
Attorney at the Conference and developed a program on regulatory reform. After I entered private practice, I was
subsequently a consultant to the
I have been a consultant to the Conference on several occasions. Probably most notably, I developed negotiated rulemaking as a consultant to ACUS and wrote a series of articles on the use of dispute resolution techniques by the Federal Government. Those articles resulted in the Negotiated Rulemaking Act and the Administrative Dispute Resolution Act. Through its recommendations, oversight, and consultations, the Conference played a pivotal role in improving the way government agencies make decisions affecting the public.
The processes government agencies use to make decisions
are complex, difficult, and continually evolving. The flexible, scant procedures outlined in
the Administrative Procedure Act have been supplemented by numerous Executive
Orders, judicial decisions, and ad hoc statutory requirements. Moreover, since the APA was enacted in 1946
significant changes have taken place in the management structure of the Federal
government, and there are new forms of public-private interaction, new
developments in the relationship between Federal and State governments, and new
perceptions as to how the government should function when making important
decisions. Officials in each agency must
confront all of these demands each time they take action. As a result, similar choices must be made
over and over again in the halls of
Oftentimes officials have little information as to how well a program implemented by another agency works or little guidance as to how the duties could be successfully discharged or major pitfalls avoided. Those who deal regularly with multiple agencies have witnessed the dire need for some means by which agencies can share insights and experiences and to gain expert advice as to the best ways to go about the public’s business. Without it, agencies necessarily incur high transaction costs by repeatedly reinventing similar procedures; the lack also means the best ideas are not recognized, strengthened, and used more widely nor the worst improved or discarded.
Further, advice would be helpful both to Congress and the agencies as to the potential structure of new ways to achieve public goals and to respond to public inquiries and criticisms about how individual agencies have functioned. And, Congress and the agencies alike could benefit from the insights and advice of those who are directly affected by the administrative process and from those who study it from a variety of perspectives.
Since the demise of ACUS, we lack the means to refine how we do the public’s business: no office or organization regularly convenes a broadly representative group of experts to deliberate about how to improve the quality of the administrative process. A permanent entity such as renewed ACUS is needed that can be devoted to solving the problems of excess costs, delays, and burdens that are imposed upon the agencies and upon the public by inadequate, inefficient, and duplicative government processes.
Individual agencies, while they have the ability to review their own performance, lack the capacity to make cross-cutting agency reforms and comparisons. Furthermore, agencies acting alone cannot make the necessary procedural reforms for the improvement of administrative process as a whole. And, agencies usually do not have the incentive, will, or resources to conduct a thorough self-examination to see if they could do things better.
A forum for collegial self-critique and development of effective administrative practices is eminently desirable. Moreover, one is needed that can bring a sense of unity to administrative agencies and promote an appropriate degree of uniformity in their procedures. Congress should, therefore, establish such an institution that will systematically seek to promote improvements in the administrative process: The Administrative Conference is just such an agency.
The primary purpose of revitalized ACUS would be to care for the improvement of the administrative process. In doing so, it would examine government procedures and practices, with the goal being to search for new ways of helping governmental agencies function more fairly, efficiently, and effectively. The organization could play a leading role in the development of domestic administrative law doctrines. One of its foremost functions would be to review and evaluate whether the basic law governing administrative procedure, the Administrative Procedure Act (“APA”), as well as other procedural requirements should be revised and updated. It could also arrange for the interchange among administrative agencies of information potentially useful in improving administrative procedures. Another role it could discharge would be the preparation of resource documents, bibliographies, and advice and recommendations on various topics confronted by agencies. Although now aging, ACUS handbooks are on the desks of many of the leaders in the administrative process on both sides of the great public-private divide.
The new ACUS could also focus on the more minute details
of the administrative process as well.
Specifically, it could study and adopt recommendations concerning better
rule-making procedures, or ways to avoid legal technicalities, controversies,
and delays through agency use of alternative means of dispute resolution. For example, the exploding use of the
internet and other forms of electronic communication present wonderful
opportunities for increasing the information available to our citizens and
their participation in our affairs. But,
tapping these resources and making sure they work effectively and efficiently
is itself a daunting task. A recent
conference on e-rulemaking held at
Another focus would be to collect information and statistics from administrative agencies and to publish reports that could be useful for evaluating and improving administrative procedure. It could also evaluate the judicial review of agency actions and make recommendations for its improvement. A major issue confronting the administrative process that has emerged forcibly in the past few years is the delicate balance of open government in a time of concern over national security and the means by which requirements are imposed on our citizens and businesses to protect our homeland.
Another purpose for renewing ACUS could be to serve as a regulatory ombuds. It could in appropriate circumstances investigate and respond to individual complaints and undertake a systematic performance review of various government agencies, especially of those agencies with serious operational and programmatic problems. Individual agencies themselves often resist any critical self-evaluation in response to public complaints due to burdensome workloads or a failure to admit the flaws in one’s own prior decisions. An independent, objective entity, unfettered by internal agency politics and its own inertia, can offer meaningful recommendations to improve the operational structure of administrative agencies.
We also lack a repository on administrative processes that the various state governments could call upon for high quality administrative procedural advice. ACUS could consider ways to improve federal, state, and local relations in different areas, including those in which state and local agencies administer federal programs. The organization could attempt to promote cooperation and coordination on interstate administrative procedural matters to foster a responsible and efficient administrative process among the several states. The entity would be equipped to advise state agencies and their staffs of significant legal developments and emerging trends occurring in the area of administrative procedure.
Another major issue in administrative procedure comes from the international harmonization of laws and regulations. As a result of harmonization, many domestic regulations will need to be changed to bring them into conformity with the international requirements. Just how that is to be done is a complex, controversial issue that needs to be addressed.
ACUS was structured to develop objective, non-partisan analysis and advice. It had sufficient independence from particular policy-based responsibilities, and hence its recommendations were given credence and were seen as a detached analysis. The structural makeup could bring together an inter-disciplinary collection of experts in the administrative process. Membership would preferably include: committed senior management agency officials, professional agency staff, representatives of diverse perspectives the private sector who deal frequently with agencies, leaders of public interest organizations, highly regarded scholars from a variety of disciplines, and respected jurists. The problems that ACUS should address include management as well as legal issues. Thus, its panel of experts should be comprised of members with both legal backgrounds and those who may not have legal training, such as management, public administration, political science, dispute resolution, and law and economics. State interests should also be included in the entity’s membership by sending representatives from certain state agencies or state organizations.
One final point should be made: Although it is currently politically
unfashionable to suggest that funding should be increased, that is clearly the
case here. Throughout its life, ACUS was
a huge bargain for the
The new ACUS will help significantly in ensuring that our public decisions are made effectively, efficiently, and fairly. That is clearly a major undertaking, but one ACUS is structured to discharge for the benefit of us all.