Conference: Presidential and Judicial Oversight of Administrative Agencies

May 10, 2012Duke Law News

The Center for Judicial Studies’ inaugural conference, held on April 27, focused on presidential and judicial oversight of administrative agencies. Leading academics, federal judges, and policymakers, including current and former officials from the White House’s Office of Information and Regulatory Affairs (OIRA), the U.S. Patent and Trademark Office (USPTO), and the Consumer Financial Protection Bureau, examined academic studies at the intersection of social science and law that suggest possible law reforms, improvements to decision-making models, or further areas for academic inquiry.

The daylong conference focused on four discrete topics: presidential oversight of administrative agencies through OIRA; judicial oversight of administrative agencies; the formal analyses of judicial and agency decision-making, often empirically based, that are conducted by social scientists and legal scholars; and judicial oversight in the fields of patent and antitrust, two scientifically, technologically, and economically complex areas where the judiciary has been a dominant player in making law.

“Administrative decision-makers and judges presented invaluable perspectives on the scholarly articles that were presented,” said Arti Rai, the Elvin R. Latty Professor of Law. Rai co-organized the conference with John de Figueiredo, the Edward and Ellen Marie Schwarzman Professor of Law

“It was just extraordinary to see the interaction at times,” said Rai, who has served as administrator of the Office of External Affairs at the USPTO. The first panel, which focused on OIRA ─ a “much-studied office,” according to Rai ─ offered one example; one discussant, Professor John Graham, headed OIRA during the administration of President George W. Bush. “It was really eye-opening to recognize the extent to which academics who study OIRA have gotten some things right, but have gotten many things wrong, in terms of their model of what the office does. It does more than just cost-benefit analysis on the one hand, and on the other, it’s probably less powerful than some academics have made it out to be.

“So the story -- as is often the case when you delve into real-world reality checks on one’s statistical work and models based on that work -- is much more complex,” she said.

The “compare and contrast” between academic theorizing and real-world experience continued through all of the attendees’ discussions, with the federal judges in attendance -- Judges Jay Plager and Kathleen O'Malley of the Court of Appeals for the Federal Circuit, Stephen Williams of the D.C. Circuit Court of Appeals, Diane Wood of the Seventh Circuit Court of Appeals, and James Smith ’86, chief administrative patent judge at the Board of Patent Appeals and Interfaces at the USPTO -- offering insight into the operations of their courts and their methods of approach to administrative law cases.

It is precisely the sort of interaction that the Center for Judicial Studies is designed to facilitate.

“This conference was a wonderful start for our new Center,” said Dean David F. Levi. “The room fairly vibrated with energy and excitement as judges, policy officials, and scholars exchanged ideas, points of view, and reflections based upon study and experience. The mixing of the perspectives of dedicated and incredibly insightful scholars and practitioners generates the creative environment in which new ideas are born. Professors Rai and de Figueiredo are to be congratulated on conceiving and implementing such an exciting gathering of top people.”

Judges Williams and Plager offered similar assessments.

"It was good to hear interesting and insightful presentations by academics ─ under conditions where one could talk back," Williams commented.

“As someone who started out teaching law, headed up OIRA review of agencies, and now sits as a judge on the Federal Circuit reviewing, among others, decisions from the USPTO, I could not have attended a more interesting (and fun) conference than yours,” Plager told Rai. “I really enjoyed listening, and responding to, what the academic and other participants had to say about each topic. The Duke Center for Judicial Studies is to be congratulated on such a notable gathering, and I look forward to your future programs and products.”

Academics should be interacting with regularity with the judges and agency officials they routinely study, said de Figueiredo. “There has been a sense, in recent decades, that academia and the real world are diverging to some extent,” he said. “Understanding how institutions work and people in those institutions behave is essential to law and social science research. We academics need interaction with people who can have insight into the model’s accuracy, rather than simply having other academics affirm the validity of our models.”

Participants


Matthew Adler
Richard A. Horvitz Professor of Law, Duke University School of Law (effective July 1, 2012)
Leon Meltzer Professor of Law, University of Pennsylvania School of Law

Stuart Minor Benjamin
Douglas B. Maggs Professor of Law
Duke University School of Law

Lisa Schultz Bressman
Associate Dean for Academic Affairs, Professor of Law
Vanderbilt Law School

Charles M. Cameron
Professor of Politics and Public Affairs
Woodrow Wilson School of Public and International Affairs
Princeton University

Ray Chen
Deputy General Counsel for Intellectual Property Law and Solicitor
U.S. Patent and Trademark Office

John M. de Figueiredo
Edward and Ellen Marie Schwarzman Professor of Law, Duke University School of Law, Duke University
Professor of Strategy and Economics, Fuqua School of Business, Duke University

Einer R. Elhauge
Carroll and Milton Petrie Professor of Law
Harvard Law School

William Eskridge, Jr.
John A. Garver Professor of Jurisprudence
Yale Law School

Jacob Gersen
Professor of Law
Harvard Law School

John D. Graham
Dean, School of Public and Environmental Affairs
Indiana University

C. Scott Hemphill
Chief, Antitrust Bureau
Office of the Attorney General – State of New York
Professor of Law
Columbia Law School

Jack Knight
Frederic Cleaveland Professor of Law and Political Science
Duke University School of Law

Margaret H. Lemos
Professor of Law
Duke University School of Law

David F. Levi
Dean, Professor of Law
Duke University School of Law

Jonathan Masur
Assistant Professor of Law
Herbert and Marjorie Fried Teaching Scholar
University of Chicago Law School

Thomas Merrill
Charles Evans Hughes Professor of Law
Columbia University Law School

Anne Joseph O’Connell
Professor of Law
University of California, Berkeley School of Law

Judge Kathleen O’Malley
U.S. Court of Appeals for the Federal Circuit

Judge Jay Plager
U.S. Court of Appeals for the Federal Circuit

Arti K. Rai
Elvin R. Latty Professor of Law
Duke University School of Law

Barak Richman
Professor of Law
Duke University School of Law

Christopher Schroeder
Charles S. Murphy Professor of Law and Public Policy Studies
Duke University School of Law

Howard Shelanski
Professor of Law
Georgetown University Law Center

James Smith
Chief Administrative Patent Judge
U.S. Patent and Trademark Office

Matthew Stephenson
Professor of Law
Harvard Law School

Adrian Vermeule
John H. Watson, Jr. Professor of Law
Harvard University

Judge Stephen Williams
U.S. Court of Appeals for the District of Columbia Circuit

Judge Diane Wood
U.S. Court of Appeals for the Seventh Circuit

Jonathan B. Wiener
William R. and Thomas L. Perkins Professor of Law, Duke University School of Law
Professor of Environmental Policy, Nicholas School of the Environment
Professor of Public Policy, Sanford School of Public Policy
Duke University