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1 Paul R. Verkuil, What the Return of the Administrative Conference of the United States Means for Administrative Law 17 (2012)

handle is hein.usfed/wradus0001 and id is 1 raw text is: ESSAY WHAT THE RETURN OF THE ADMINISTRATIVE CONFERENCE OF THE UNITED STATES MEANS FOR ADMINISTRATIVE LAW Paul R. Verkuil* INTRODUCTION Administrative law, writ large, is about the way agencies behave, and how other institutions and the public react to that behavior. By promulgat- ing rules, adjudicating cases and claims, enforcing statutes, providing guidance, collaborating with interest groups, exercising discretion, and so forth, agencies manage and implement the business of government. They do this under the auspices of the Executive Branch, but the other branches assert authority over the agencies as well. Congress does so by legislating, budgeting, and overseeing, while the courts do so by interpreting statutes and requiring rational behavior from agencies. These important and essen- tial activities fill many law school publications with statutes, cases, and rules. But the branches that produce this body of law are institutionally constrained-they have difficulty testing hypotheses or experimenting with alternatives before statutes are enacted, cases are decided, or rules are promulgated. Congress and the courts often act in a data vacuum. True, Congress holds hearings and requests reports from the Government Accountability Office or the Congressional Research Service-but legislation often results from extraordinary events rather than from systematic study.2 When the courts use the common law process of incremental decision making, they can Tenth Chairman of the Administrative Conference of the United States (ACUS); President Emeritus, The College of William & Mary. Thanks to Reeve Bull, Jeff Lubbers, Michael McCarthy, David Pritzker, Scott Rafferty, and Jon Siegel for their assistance and advice on this Essay. 1. See Elizabeth Magill, Agency Choice of Policymaking Form, 71 U. CHI. L. REv. 1383, 1386-90 (2004) (describing the menu of policy-making tools available to federal agencies). 2. Congress, as the institution closest to the electorate, often responds to dramatic events rather than systematic studies. Indeed, statutes sometimes bear the name of their precipitating cause (e.g., The Lindbergh Law, The Brady Law, etc.). See Ethan Trex, 11 Laws Named After People, MENTAL FLOSS (Dec. 17, 2009, 12:43 PM), http://www. mentalfloss.com/blogs/archives/43307. 17

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