Showcase Panel Iii: the States & Administrative Law

• Publication year: 2021

98 Nebraska L. Rev. 151. Showcase Panel III: The States & Administrative Law

SHOWCASE PANEL III: THE STATES & ADMINISTRATIVE LAW

Nestor Davidson
Christopher Green
Miriam Seifter
Jeffrey Sutton
Michael Scudder

Dean Reuter:Good morning and welcome back to this, the third day, the best day of The Federalist Society's National Lawyers Convention. I am still Dean Reuter,(fn1) still Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. But now I am also in charge of cleaning up the rooms after we finish here. So if you would please be careful with all your personal belongings, that would be helpful to me personally.

What a great second day I think we had, and a great night last night. I thought Jeff Sutton-Judge Jeff Sutton-was terrific as he delivered the Olson Lecture. So good, in fact, that we've invited him back to be on this morning's panel. In addition to having heard his lecture last night, I have read his book.(fn2) And I recommend it highly. It embraces a view of law and the practice of law that is, I'd say, near revolutionary but so obvious I wonder why nobody had come up with it before. It is obviously correct that to not adopt his views, I think, might rise to the level of legal malpractice.

Hon. Jeffrey Sutton:I've got you right where I want you.

Dean Reuter:Yeah. So you might want to buy a copy for yourself, but also for all your partners and associates to keep your firm out of trouble. So congratulations, Judge, and welcome back this morning.

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Our first panel this morning is titled "The States and Administrative Law." And we've assembled for you this morning what I consider to be a truly first-class group of panelists. I do really mean first-class. I'm very proud of this panel.

But that term, "first-class," gets overused sometimes. And that, of course, reminds me of a little story, which takes me back over twenty years. This story-it also happened in an airport, which might be of interest to you for that additional reason, since many of you travelled by plane to get here.

So, twenty years ago or so, I was working for the federal government and my children, who are now grown, were at the time very little. I was a single parent with custody of my kids so I tried to keep my travel to a minimum. But one time I had back-to-back trips and I went to the extraordinary measure of trying to come home just for an overnight.

But coming back on that first leg of the trip I had severe delays, landing well after midnight at Dulles airport. I was supposed to have arrived in time for dinner, tuck my kids into bed, and see them. But instead, I was merely able to just peek in on them. I climbed into bed and set my alarm for an early morning flight out. My kids never saw me, although I did see them, before I headed back to Dulles at daybreak the next day.

That morning I was in the check-in line-still dark outside-waiting. And I was on one of the budget airlines, which I would charitably describe as a younger airline. It no longer exists. It died before it reached puberty for reasons that might become apparent here in a minute. But I got to the front of the line, and I saw an impossibly young man behind the counter to greet me. He looked like he should have been catching the bus to his middle school at that hour of the day. And I was wearing a suit. I had a well-worn trench coat; a somewhat battered, wheeled suitcase; and a well-used briefcase-I looked just like the stereotypical business traveler. So I was a little surprised when the young man, way too happy at that hour of the morning, asked me, "Is this your first time flying?"

Now, having landed at that very airport just a few hours before- after midnight, in fact, that morning-I was able to reply, somewhat snarkily, "This isn't my first time travelling today." And, of course, that remark went right over his head.

Anyhow, I was worn out by this time and I thought I'd use my own money to try to get some extra leg room. So I said, "Do you have anything in the economy-plus section?" "No, sir," he replied, without further elaboration. So now I was willing to plunk down my own money, some real money, to upgrade to first class. "Do you have anything available in first class?" I asked, hopefully. And then, without pausing, almost as if he had anticipated my question, he said, "Sir, all our

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seats are first-class." "Of course they are," I said. By that time I was totally defeated.

But our panel is truly first-class.

And I'm very pleased to introduce our moderator-if you want to applaud, you can. Judge Michael Scudder of the Seventh Circuit, I believe, is making his first appearance at our convention as a moderator today. And we're very pleased to have him here. Incidentally, if you haven't noticed, we have over-I did the math on this-we have over 20% of the active federal appellate bench involved in the convention this year. They're doing everything, including cleaning up rooms afterward.

Judge Scudder attended St. Joseph's College and then Northwestern University Law School, a very fine institution. He clerked for Judge Niemeyer on the Fourth Circuit and then Justice Kennedy. He was at Jones Day Cleveland, which some people might know as the home office of that law firm, and then as an Assistant United States Attorney in the Southern District of New York. He's also served in the White House Counsel's Office and the National Security Council. He's been serving on the Seventh Circuit since earlier this year. And I'm very pleased to have him with us this morning. So, please, do join me in welcoming Judge Michael Scudder.

Hon. Michael Scudder:Thank you, Dean. Good morning, everyone. It's wonderful to be here. I want to start by just introducing our panelists and diving right into what I think will be a very vibrant and illuminating discussion covering a range of pretty timely topics from a variety of perspectives.

To my left is my good friend, Jeff Sutton.(fn3) Dean was right on the money, I think, in commending Judge Sutton's Olson Lecture, yesterday evening, featuring his book, Fifty-One Imperfect Solutions: States and the Making of American Constitutional Law.(fn4) I think Jeff is going to elaborate on some of the points, and then maybe expand upon a couple of aspects of the points he made yesterday. And just briefly, I think as most people here know, Judge Sutton serves on the U.S. Court of Appeals for the Sixth Circuit. He, too, is a former Jones Day lawyer, and is actually the reason I joined Jones Day after clerking for Justice Kennedy. And, of course, Judge Sutton served as the State Solicitor of Ohio, was a law clerk to Justice Lewis Powell, Justice Antonin Scalia, and Judge Meskill on the Second Circuit.

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To Jeff's left is Chris Green.(fn5) Chris is a law professor at the University of Mississippi, where he also teaches as a scholar in law and philosophy. Chris graduated from Princeton, Yale Law School, has a Ph.D. from Notre Dame in philosophy, clerked for Judge Barksdale on the Fifth Circuit, and teaches in the area of constitutional law, including state constitutional law. So, Chris, welcome.

To Chris's left is Miriam Seifter from the University of Wisconsin Law School.(fn6) Miriam is a graduate of Yale University, Harvard Law School, clerked for Chief Judge Garland of the D.C. Circuit and for Justice Ginsburg at the Supreme Court, worked in private practice a bit at Munger Tolles in Northern California, and is here this morning to focus on an aspect of state administrative law that we'll find pretty fascinating-looking at agency independence at the state level and what it says and doesn't say, more broadly, for the development of administrative law at the state and federal level.

And to Miriam's left is Nestor Davidson from Fordham Law School.(fn7) Nestor teaches in the area of property, land use, and real estate; has a casebook that came out last year on property law, practiced at Latham & Watkins after graduating from Harvard College and Columbia Law School; and clerked for Judge Tatel on the D.C. Circuit and then Justice Souter at the Supreme Court.

So welcome, one and all. Why don't we start with Judge Sutton here and invite him to offer his perspective this morning on the topic that brings us together: the states and administrative law.

Hon. Jeffrey Sutton:At the outset, let me point out one difference between state structural protections and state individual rights. With respect to individual rights protected in the state constitutions and the Bill of Rights, such as free speech, free exercise, and so forth, there is a two-shots phenomenon, where if you do not like what a state or local government has done, you can sue, for example, under the First Amendment's Free Speech Clause(fn8) and under the counterpart of that state's constitution. So that is the individual rights world in which the lawyer customarily has two shots.

With structure it's a different story. The U.S. Constitution does not speak to the structure of the states and their state constitutions. The republican form of government guarantee in the U.S. Constitution has

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been deemed judicially unenforceable to date.(fn9) So that you do not have this overlay where you can get a state separation of powers problem and say, "Aha, does the Federal Constitution speak to that? Is there a second shot?" Not really. You have to be pretty imaginative and a very persuasive...