2018 National Lawyers Convention Transcripts

“We live in a system where regulators make the rules, investigate alleged violations of the rules, and then adjudicate those violations before Administrative Law Judges. If the matter ever gets to court, courts generally defer to the agency on questions of law “and fact.” As a result, agencies know that their regulations are unlikely to face challenge and, if they are challenged, will likely be upheld. In this system, critics argue, the predictable result is more and more irrational regulations and enforcement actions. Arizona has first-of-its-kind legislation to “reverse” Chevron and to instruct courts to give no deference to agency decisions on questions of law. On a related note, Arizona also passed the Right to Earn a Living Act, creating a cause of action to challenge occupational licensing decisions under a heightened standard of review. Some contend that the result of this new law has been significant in that regulators are reviewing and improving rules, or repealing them outright, rather than face litigation. Could these measures serve as a model other states and the federal government in reducing the size and scope of, and otherwise improving, the Administrative State?”

Prof. Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center, Fordham University School of Law

Prof. Chris Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law

Prof. Miriam Seifter, Professor of Law, University of Wisconsin Law School

Hon. Jeffrey Sutton, United States Court of Appeals, Sixth Circuit

Moderator: Hon. Michael Scudder, United States Court of Appeals, Seventh Circuit

Credit: The Federalist Society, https://fedsoc.org/conferences/2018-national-lawyers-convention#agenda-item-showcase-panel-iii-the-states-administrative-law