Professor Peter L. Strauss ·
83 Geo. Wash. L. Rev. 1668 ·
In his valuable contribution to this special issue, Richard Pierce
underscores the role the Administrative Conference of the United
States (“ACUS”) has played over the years in encouraging on-theground
fact-finding by its consultants, who have usually been academics
consulted at the beginning of careers that ever after would be
marked by this encounter with the realities of the administrative process.
As the mentee of Walter Gellhorn, who directed the remarkable
empirical studies of federal agency procedures that underlay the
eventual Administrative Procedure Act (“APA”) and who was a
member of the ACUS Council from its initiation in 1964 until the end
of its first active period, perhaps its most active member, it is easy to
agree. My own first serious essay into administrative law scholarship,
arranged by Walter, was an ACUS project that placed me for two
months at the Bureau of Land Management offices in Denver, Colorado,
observing how policy decisions concerning land use issues happened
to arise in both adjudications and rulemakings—and learning
that the prevailing supposition that agencies chose from the top which
of these procedural routes to pursue was (at least there) unrealistic.
Not unimportantly, the empirical research ACUS has promoted—like
mine, like Professor Pierce’s, and like the others’ he recounts—has
been research requiring physical presence and observation—interviews
and facts on the ground more than the disembodied data sets
that fuel the “empirical” research of economists and many political
scientists. Next to actually serving in an administrative agency (the
deepest of educational experiences about the subject we teach), it is
research like this that is most likely to free the young scholar from the
illusion that administrative law is all about, as Louis Jaffe once put it,
“Judicial Control of Administrative Action.” What a contribution,
then, ACUS has made not only to improvements in the functioning of
government, but also to the way in which administrative law is
presented in law school classrooms and written about in the academic
literature.
