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Administrative Law

PSJD Career Guide

This Guide is designed to give you a brief overview of the legal field in Administrative Law. It provides practical information regarding the types of employers and practice settings in which you can pursue a career; the personality traits that employers seek; the practical skills that you can gain during law school; and resources to further research this field.

The content of this Guide is courtesy of the Bernard Koteen Office of Public Interest Advising at Harvard Law School. It was written by Isabel Salovaara, 2011 Summer Fellow and Adam Augusiak-Boro, 2010 Summer Fellow and edited by Catherine Pattanayak, Esq., Assistant Director of the Office of Public Interest Advising.

What is Administrative Law?

Administrative law refers generally to the laws and legal principles governing the creation, administration and regulation of government agencies at the federal, state, and local levels. It is essentially the powers granted to administrative agencies. Federal, state, and local agencies are granted their power by Congress, state legislatures, or city councils, through statutory law under which regulations are then promulgated. Although most people do not realize it, administrative law affects our lives in numerous ways, coming into play at any point where a government agency steps in to alter the legal rights of citizens, corporations, or other entities.

Administrative lawyers work in a wide variety of capacities, spanning multiple levels and branches of government and a host of extra-governmental organizations. Those who write agency regulations might be the most likely to call themselves administrative lawyers, but practitioners of administrative law may also fill a multitude of other roles, including analyzing and commenting on proposed rules and prosecuting, defending, or adjudicating cases involving regulations or their violation.

Writing Regulations

The process of rulemaking, or writing agency regulations, is the activity most typically associated with administrative law. There are perhaps tens of thousands of rules and regulations issued by federal, state, and local agencies. While some of the more routine regulations have been written by non-lawyers filling in an approved template, most new regulations require the special attention and legal expertise of administrative lawyers working in the agency.

Counseling Agency Staff and Officials

Administrative lawyers may also provide legal advice to agency staff and experts to ensure that proposed rules are lawful, logical, and substantively correct. Administrative lawyers in regulatory counsel positions, for instance, work alongside scientists and other technical experts to assist them in formulating the first draft of new regulations. Those agency staffers charged with developing or modifying agency policy within the constraints of relevant statutes require the assistance of lawyers familiar with proper legal protocol and phrasing. These administrative lawyers help agency policymakers ensure that their policies will actually have the desired effect.

Commenting on Regulations

Those involved in administrative law may also take part in commenting on regulations, as there must be a period during which a proposed regulation is made available for public comment. This is an important process that provides an opportunity for interests outside the government itself to lobby for particular modifications to proposed rules. During the comment period, anyone, including private firms and NGOs, can submit desired changes to proposed agency rules before they are made final. Even before the proposed regulations are made public, however, internal comments and modifications will be incorporated into the rule. Commenting on regulations—whether to ensure their legal soundness or to promote a particular policy agenda—is a significant part of administrative law practice.

Organizing Regulatory Hearings

As part of the “Notice and Comment” phase of rulemaking, agencies must sometimes, though not always, hold hearings to allow parties affected by or otherwise interested in a new or revised regulation to provide their feedback. Young administrative attorneys might also take part in organizing these regulatory hearings. This type of work could involve preparing the hearing notice, authoring an agenda, publicizing the hearing, or reaching out to important interest groups affected by the proposed rule.

Analyzing Public Comments

After the public comments have been submitted, agency lawyers will take part in assessing this feedback on the proposed regulations. Agency lawyers will have to consider both the policy implications and the legal feasibility of incorporating recommended changes. Once the agency has updated the rule in response to public input, the Office of Management and Budget will again review the rule, now in its modified form, before the rule is officially published and promulgated.

Investigation and Oversight

There are also opportunities for lawyers to conduct investigations: on both oversight and investigative committees on Capitol Hill, in state legislatures, and within an agency inspector general’s office. One of the tasks of the inspector general’s office is to make sure that government departments and agencies are interpreting and utilizing administrative regulations correctly. Oversight positions allow lawyers to take part in large scale investigations, helping to review documents, conduct depositions, interview witnesses, and write up reports.

Challenging or Defending Agency Regulatory Action

Aspiring trial lawyers will find that administrative law offers opportunities to challenge or defend agency regulatory action or inaction via litigation. If an agency’s rulemaking oversteps the bounds set by statutes, or if, conversely, the agency fails to enact adequate regulations, outside parties can challenge the agency in court.

Participate in Administrative Hearings

Administrative lawyers may also focus on representing their agency, special interest association, or client in administrative hearings. Parties who believe that the agency’s rules were applied to them unfairly can request a hearing before an Administrative Law Judge (ALJ) affiliated with that agency. During these hearings, administrative lawyers can represent either the agency or the affected individual, company, or organization. This is one area of practice in which private public interest firms might become involved in administrative law (for example, by representing plaintiffs in cases of benefits denial).

Serving as an Administrative Law Judge

Administrative Law Judges (ALJs) bear the responsibility of adjudicating within the agency in cases where outside parties challenge the application of agency rules. Although they are agency employees, they are designed to be independent actors who must resolve disputes between government agencies and those affected by agency decisions. ALJs may work at the federal or state level. Their tasks include administering oaths, issuing subpoenas, handling depositions, managing the hearings, holding conferences between the parties, and, ultimately, making either a decision or a recommendation, depending on their specific powers in the agency context.

Where can I practice Administrative Law?

Both the executive and the legislative branches of the federal government offer numerous opportunities for lawyers to engage in administrative practice of one kind or another. From drafting regulations to conducting oversight and investigations into agency practices, the activities of federal government administrative lawyers are many and varied. It is important to remember that work for the federal government is not the only available career path, and that there are several administrative law career possibilities in non-federal government settings, such as state government.

Executive Branch

The Office of Management and Budget is a Cabinet-level office and the largest office within the Executive Office of the President of the United States. Its primary mission is to assist the President in overseeing the preparation of the federal budget and to supervise its administration in Executive Branch agencies. In order to formulate the President’s spending plan, the OMB evaluates the effectiveness of agency programs, policies and procedures; it also assesses competing funding demands among agencies and helps set funding priorities. Furthermore, the OMB ensures that agency reports, rules, testimony, and proposed legislation are consistent with the President‘s budget and with Administration policies. Finally, the OMB manages and coordinates the Administration’s procurement, financial management, information, and regulatory policies. The goal of the OMB’s work is to help improve administrative management to reduce any unnecessary burdens on the public.

In-house Agency Counsel

Work within a federal agency might be considered the center of the administrative law world. In these positions, issues of administrative law arise on a daily basis. What is this rule? What is its proper interpretation? What is exempt from notice and comment under the APA? What is good cause under the APA? Student interns and attorneys will confront these questions—and carry out other tasks such as counseling agency officials, investigating and prosecuting regulatory infractions, or helping defend the agency in judicial or administrative hearings—if they choose to pursue government agency work.

Government Litigation: The Department of Justice

The primary responsibility of DOJ is to litigate on behalf of the United States. DOJ attorneys litigate in federal and state courts, as well as in Administrative or Article I Courts, where appointed judges adjudicate on the meanings or force of regulations. As in most government agencies, administrative law plays a central role at DOJ’s Civil Appellate Staff and Federal Programs Branch. The Civil Appellate Section is responsible for representing federal agencies in the federal courts of appeals. The Federal Programs Branch, located within the Civil Division, litigate[s] on behalf of dozens of federal agencies, the President and Cabinet officers, and other government officials.

Legislative Branch (Federal)

While the major function of Congress is to write legislation, Congress also has subpoena power and the ability to conduct investigations. In order to monitor the executive agencies that fall under their area of expertise, Congressional oversight committees and subcommittees can gather information and reports from agencies’ OIGs, or hold hearings and call in agency officials to testify. From an administrative law perspective, these oversight and investigative functions are significant—a part of the system of checks and balances among the branches of government. The oversight process allows Congress to track the ways in which executive agencies are applying the provisions of statutory law and ensure that the intentions of a particular statute are preserved in the regulations that follow from it.

High-level Executive Office at State Level

High-level executive office at the state level is an excellent place for young attorneys to gain experience in administrative law. Governors typically retain a legal office of attorney-advisors, who interact with the state legislature as well as with state-level executive agencies. Working in the governor‘s office exposes attorneys to administrative law and rulemaking, numerous areas of substantive interest, and policy crafting and implementation.

Counsel for State Agencies

Counsel for state agencies have similar roles and responsibilities to those of agency lawyers at the federal level. They assist the agency policy makers in assuring the legal sufficiency of the regulations that they promulgate. Their daily tasks may include drafting rules, advising substantive experts, soliciting and evaluating public comments, defending their agencies, or helping prepare cases against entities that are violating state regulations.

Government Litigation: State Attorneys General Offices

For attorneys looking to participate in government litigation at the state level, state Attorneys General Offices offer ideal and challenging positions that often involve administrative practice. State Attorneys General (AG) Offices defend state government agencies accused of promulgating inappropriate, insufficient, or overzealous regulations.

Legislative Branch (State)

Administrative attorneys can try out positions within state legislatures, such as with legislotors’ personal staff or committees. As in federal government, state legislatures’ work intersects frequently with administrative law. At the state level, legislatures issue statutes that are then passed on to state agencies to implement. To do so, the state agencies promulgate regulations. Administrative law bears on both policy-making and oversight functions of the legislature. As state legislators and their staffs formulate statutes, they must consider the influence of administrative factors, or their statutes may not have the effects they intend. After statutes have been passed and regulations promulgated, state legislatures follow up with oversight and investigation to ensure that agencies are properly executing the law.

Which personality traits make you well-suited for this?

Those working in administrative law must be able to speak diplomatically and negotiate effectively. Because regulations affect millions of people, as well as powerful private actors, rule making will require skills in conflict resolution and compromise. Patience and prudence are also very important, noting that administrative lawyers work toward results that have long-term benefits to the system, even though their efforts may take a long time to come to fruition.

What can I be doing in law school to help my career in Administrative Law?

There are a number of steps you can take during law school to build up the knowledge and experience necessary to become a top-notch administrative lawyer. These strategies include selecting useful courses such as administrative law and courses dealing with a specific body of regulation (such as labor law, environmental law, or securities), pursuing clinical/practical learning opportunities, completing relevant internships, and joining student or professional organizations. Also, a demonstrated commitment in public interest is frequently an important qualification for administrative law positions in the public sector. It is important to note that having the skills of an administrative lawyer means having the skills of a good lawyer overall. Strong writing skills are a very desirable asset. The importance of coursework and grades will vary by employer. Consequently, building the skill set of an administrative lawyer is a great investment in your future, no matter what you ultimately pursue. Many of the skills that administrative lawyers must develop will transfer over to any substantive field of law, even private practice.

Resources

The following links will be useful as you continue to explore this field:

Category: Explore Your Career Options