JUDGES, BUREAUCRATS AND THE LEVIATHAN STATE: A REPLY TO PROFESSOR FUNK (35 YEARS LATER).

• Author: Huffman, James

1. INTRODUCTION 751 II. MY 1984 ESSAY 752 III. PROFESSOR FUNK'S 1984 REPLY 755 IV. MY BELATED REPLY 759 I. INTRODUCTION

   In 1984 I published a short article titled "The Role of Courts in the Implementation and Administration of Environmental Legislation." (1) The article was based on a lecture I had delivered at Aarhus University in Denmark. A few months later, Professor Bill Funk published "Alive and Well in the Leviathan State: A Reply to Professor Huffman." (2) Because both articles were published in Lewis & Clark Law School's alumni magazine, The Advocate, it is possible that Bill and I are the only people who ever read them. After all, alumni are more likely to look for news about their classmates than for scholarly essays in their alumni magazine.

   Now, thirty-five years after Professor Funk's reply, it seems timely to reply in turn. The topic remains as relevant as ever, and it is possible that both Professor Funk and I have learned a few things over the intervening decades. Having reread my words of nearly four decades ago and Bill's thoughtful reply, I can say with assurance that the questions we examined as young law professors have, if anything, grown more complicated and pressing.

   I will summarize below the substance of our two positions of old, but first I must acknowledge that Professor Funk is and has been for many years one of the leading administrative law experts in the country. He is the co-author of one of the leading administrative law casebooks, Administrative Procedure and Practice: Problems and Cases, as well as Administrative Law: Examples & Explanations and the Federal Administrative Procedure Sourcebook. He has also chaired the Administrative Law Section of the Association of American Law Schools and of the American Bar Association. He served as editor in chief of the latter section's Administrative & Regulatory Law News and is a member of the American Law Institute and a Fellow of the American Bar Foundation.

2. MY 1984 ESSAY

   Upon rereading my 1984 essay I was somewhat chagrined to realize that I then purported to know something about administrative law. The fact of the matter is that my exposure to the topic was limited to an administrative law class in law school that I did not attend because I found the professor unbearably boring. It was my good fortune that that professor was the author of the casebook, a hornbook and a multi-volume treatise, all of which followed an identical outline with succinct bullet points at the beginning of each chapter which saved one from reading the text and served well the exam needs of a truant. As it happens, those same bullet points got me through the bar exam several years later. So, I am grateful that Bill was both gracious and collegial in not underscoring in his reply the primitive state of my knowledge of administrative law. Having escaped exposure as something of a fraud so many years ago, why not once again sally forth into Bill's rightful territory.

   In my essay of thirty-five years ago I argued that the judicial and academic debates of the day regarding the proper role of the courts in administrative law assumed a binary choice between procedural and substantive review. But that did not, I suggested, reflect the concerns of those whose lives were impacted on a daily basis by burgeoning environmental regulation. The courts of their experience, designed in contemplation of more modest government, had little occasion to question the merits of government actions. Judicial review of private claims against government or government claims of private law-breaking is, I suggested, "quite a different matter from judicial review of administrative regulations designed to protect against the unknown risks associated with a substance having unknown impacts on the environment." (3) I should have said uncertain in both cases, not unknown.

   My argument, at the suggestion of my Aarhus host, drew upon an article published in another alumni magazine by Professor Roger Cramton titled "Judicial Lawmaking in the Leviathan State" (4)--hence the title to Professor Funk's reply. Cramton expressed two concerns about contemporary developments in the law: 1) the importance being placed on procedural technicalities rather than questions of guilt or innocence in criminal law, and 2) the expanding role of judges as lawmakers on social and economic issues. (5) He went on to offer five explanations for these concerns:

   1) The role of the judiciary is inevitably changed in the Leviathan state.

   2) The confrontational style of then contemporary America.

   3) The declining state of other mechanisms of social control like the church, the family, and a shared set of values.

   4) The growth of interest groups in politics.

   5) The failure of the executive and legislative branches of government to deal with the problems of the day. (6)

   To be clear, Professor Cramton did not offer this diagnosis just yesterday, although he might well have were he still alive. But if he was even close to right, surely the issues Bill and I wrote about remain relevant today.

   Cramton suggested two models of judicial review that lawyers today will more likely recognize as today's adjudicatory and rulemaking models of administrative procedure. One model involves the adjudication of rights, which Cramton claimed "adds to the integrity and acceptance of the administrative process." (7) The other model involves "general problem-solving [rather] than... dispute resolution." (8) This model, which Cramton clearly found problematic, arose either because action was thought necessary but the executive and legislature had failed to act, or because objection was taken to executive interpretation or application of general legislative enactments.

   After summarizing Cramton's argument as above, I then offered a brief history of judicial review in the United States. For most of our national history, courts resolved disputes between two private parties and between private parties and the state (including constitutional claims of individual right and claims by or against the government when acting in its proprietary capacity). The courts were not perceived to have any role in the defining of the public interest. That was the business of the legislature, with assistance from the executive.

   Chief Justice John Marshall's explanation of the judicial role in the constitutional separation of powers drew upon and then guided this dispute resolution history. The judicial role, as Chief Justice Marshall saw it, is to resolve disputes based on the particular facts of the case and the applicable law. He famously wrote in Marbury v. Madison (9) that "[i]t is emphatically the province and duty of the judicial department to say what the law is." (10) As we shall see, this statement has been misunderstood, if not consciously distorted, by those who would have the courts rewrite the law as problem solvers, but for Chief Justice Marshall it meant only that to fulfill their constitutional responsibility as arbiters of legal disputes, courts must decipher the controlling law. To amend existing law or make new law for the purpose of promoting the public good would violate the constitutional separation of powers and constitute an affront to the rule of law.

   In the resolution of private disputes and disputes between private parties and the government, courts developed various procedural hurdles to assure that plaintiffs had suffered legally cognizable harms at the hands of the defendant. Judges might have sympathy for the offended and for those injured by their own or a third party's doing, but they could offer legal remedies only to those with demonstrated legal rights infringed by the defendant.

   Once courts entered the realm of problem solving, they were faced with challenges to government action (and today inaction) (11) "not on the basis of essentially bilateral agreements between the individual and the state or specific guarantees of individual right, but rather on the basis of general claims of unauthorized government action." (12) Because these claims were often indistinguishable from the arguments the plaintiffs and others had made in lobbying the legislature, the courts developed the doctrine of standing. Having opened the door to judicial policymaking, the courts found it necessary to narrow the field of supplicants--to preclude those with generalized grievances whose remedy was properly political and admit only those with personal injuries caused by the objected-to government action. While the standing hurdle has sometimes been set very low, (13) it persists as an artifact of Marshall's view of an apolitical judiciary--it is not for the courts to grant policy victory to those who have lost in the legislature.

   The new environmental laws of the 1960s and 1970s came in two forms: regulation of private actions and regulation of governmental impacts on the environment. Both types of laws left agencies to write the actual regulations that would achieve the objectives set forth by Congress. Just as the writing of such regulations is unavoidably a quasi-legislative activity, so too is judicial review of the substance of those regulations. Once courts reach beyond questions of legal process to challenges to the adequacy of the substance of regulations, they are in the problem-solving business. And once courts are in the problem-solving business, they will be faced with endless petitions for what petitioners imagine will be better and more effective regulation. As Professor Cramton observed early in the modern era of environmental regulation: "This is one field in which the appetite for nostrums does not fade with the demonstrated failure of prior cures. Each reformer, after criticizing the failure and inefficiency of...