Archives for the month of: September, 2012

Any resemblance to the Posner-Scalia-Garner “debate” is purely intentional.
The setting is Judicial Middle School. Rachel and Antonia are well-respected and prolific legal minds at the school, both of whom always sit with the popular kids.

(Rachel is talking to a group of fellow 8th Graders)

RACHEL: OMG, did you see Antonia’s recent decision in DC? I think she is resorting to legislative history!

(Giggling ensues).

(Antonia, overhearing)

ANTONIA: I did not! I wouldn’t even think about doing that! Certainly not in that case! I only use dictionaries!

RACHEL: You did resort to legislative history! I saw it! You were seeking out the original 18th century meaning of the term. That is legislative history.

ANTONIA (shouting now): No it is not! Legislative history means things like the Committee Reports. You are lying. You can get away with it in front of that audience because they are idiots. But not in front of people who eventually will answer to me.

RACHEL: I am not lying. It is the truth.

ANTONIA: OMG, you are raising such Heller about this! Legislative history isn’t the history of the times.

RACHEL: You focused on the background and events leading to the enactment of the Second Amendment. Isn’t that legislative history?

ANTONIA: OMG, no! And any lawyer knows what legislative history is and why that isn’t legislative history. And yes, my implication is that you aren’t a lawyer and that you suck.

RACHEL: Oh yeah? Well, you are dressed hideously too! I’m going to pull an Antonia on you, Antonia. I’m going to pull out a dictionary (that thing you love) and define legislative history. Know what it says? It says that legislative history is exactly what I said it is. And your best friend edits that dictionary! So there!

ANTONIA (rolling her eyes): Whatever! I don’t DO legislative history! Legislative history is garbage!

RACHEL: I didn’t say you DO legislative history! I said you resorted to it. You don’t “do” legislative history because you kind of suck at it because you think it is garbage.

ANTONIA: Oh yeah, you’re ugly! And you’re a big fat liar! Any idiot can see I did not!

RACHEL: Are you done with the ad hominem? And you resorted to legislatively history! Just admit it!

(Students to the right of the skirmish look around nervously for a principal to break up this fight, which has degenerated from high theory to immaturity. Students on the left of the fight start to giggle).


“Who are you?” Grey asks.

“I’m Administrative Agency.” Says Agency.

“You seem very attractive to me for some reason.”

“It’s because I allow for expertise.” Nods Agency.  “I’m filled with people who are experts in something or another.   I also allow Congress to punt on tough issues that require continual oversight.”

“That is attractive to me.  I’d like to bind you.”

“You can’t bind me.”


“Congress can,” confirms the Agency.  “Congress can create a statute that would bind me to do or not do certain things in a certain way.  I can be statutorily bound.”

“Sounds dirty.” Says Grey.

“Politics usually are,” says Agency.  “It also depends where I am.  If I’m living in the Executive branch, I can also be bound by executive order.”

“Are there any other ways you can be bound?” asks Grey suggestively.

“I can bind myself,” says Agency.


“I can bind myself,” Agency repeats, “I can promulgate a rule or engage in formal adjudication that might yield a result that binds me in the future.  But not for long.  A lot of agencies change their mind about binding themselves.  For example, the NLRB habitually changes positions on certain things.”

“This isn’t exactly what I had in mind,” Grey says disappointedly, “ever since I saw you trip outside my office in an awkward way, my low self-esteem told me that to have a sadomasochistic relationship with you.”

“Try formal adjudication.”  Agency says.  “That’s pretty S&M, particularly when historically formal rulemaking required extensive hearings.  The most famous example was an FDA rulemaking about how many peanuts should be required in peanut butter.  Over 7,000 pages of testimony and exhibits later, the Agency came out with a rule saying 90% peanuts.  That’s not even as painful as formal adjudication, because in formal rulemaking you can proceed on papers if no party is prejudiced.”

“That’s just nuts!” says Grey.  “Do you do anything else crazy?”

“Everything I do is typically public.”  Agency says.

“Oh, an exhibitionist, eh?”

“Well, everyone knows what I’m doing because it is in the Federal Register, typically.  If I’m engaged in informal rulemaking, interested persons will comment and I’ll have to think about what they suggest and maybe even do it if it makes sense to me.”

“Wow, there are voyeurs?  I had no idea that administrative law could be so….hot.”

“There are safewords, too!” adds Agency.

“Really?  Like what?” Grey asks in an excited tone.

Chevron.  I get deference if I interpret an ambiguous organic statute in a reasonable way.  But it is a two-part safeword, so sometimes my pleas for Chevron get ignored.  But even then, another safeword sometimes works.”

“Oh, ORGANIC statute.  I thought you said something else,” Grey says disappointedly. “What safeword is that?”

Skidmore.  I might get higher levels of deference under Skidmore.  It depends.  But as safewords go, it isn’t all that safe.”

“What else should I know about you?”

“Sometimes if Congress doesn’t like what I’m doing, it will humiliate me.”  Agency says, head bowed.

“Public humiliation, eh?  How do they do that?”

“Hearings.  I have to listen to speeches then respond to questions.”

“I don’t think I can be with you,” said Grey. “You’re very weird.  Shouldn’t we have some characterization at some point?”

“No.  There’s nothing like that in the original which we are parodying,” Agency says.


“What happens at the end of the book anyway?”

“I think they walk away from each other.”

“Like Congress and the ICC?” Agency asks.


“When Congress doesn’t like an agency, it can disband it.  All that is left of the Interstate Commerce Commission is the Surface Transportation Board.”  Agency responded.

“You know, this conversation can’t get any hotter.  You can be bound, you do everything in public, people comment on what you are doing, and you are degraded on multiple levels.  I don’t understand why people need to read mommy porn when they have administrative law.” Grey conceded.

“Most people think Administrative law is black & white, but really it’s….” Agency started.

“Shades of grey?” Grey finished.

“No, I was thinking really it is more complicated than that.”

Still, it didn’t work out between Grey and Agency.  He was only into S&M, and Agency was into the APA.  The acronyms alone were unmanageable.  Agency, upon returning home, began to sob uncontrollably.  This is grief, she said.  As she looked again at the paper in her hands, she started crying again.

“Reversed and remanded by the D.C. Circuit.” She sobbed.  “I HATE rejection.”

Once upon a time, in the Kingdom of Academia, in the small, relatively isolated township of Legalese, resided a school.  This school taught people how to practice being lawyers, the instruction of which involved the reading of cases and verbal abuse by a trained instructor who had once been abused himself (by an illegitimate stepson of Socrates).

These instructors prided themselves on their ability to engage in grandiose intellectual ideas known as “high theory.”  They would put these ideas to paper and publish them in large volumes called law reviews, which very few people read–even the law review editors—but which killed massive amounts of trees.  Mostly the articles were read by their friends, namely people who wrote in the same field.  For reasons unknown to this author, this was not at all similar to a Ponzi scheme.

In any event, many of these instructors prided themselves on never practicing law, which made the lawyers less inclined to read anything the instructors put to paper in the same way as one looks with jaundiced eye at a recipe from someone who has never cooked.

In these ancient times, the three best of the best instructors, Sir Harford, Sir Stenfjord, and Sir Yeal, all taught their students the fine art of legal writing.  They would complete this task in the midst of their traditional law school courses, such as contracts or torts.  Alas, teaching legal writing was very hard, because it required instructors to talk to students outside of class, to grade more than a single final exam, and to actually know about the practice of law.

“This is too hard!”  Cried Sir Harford, “I have no time to publish my latest piece which all my friends in my very small circle of expertise will read!”

“This is too hard!”  Cried Sir Stenfjord, “The students keep asking me about citation methods.  They don’t write well.  It is too hard to fix!   I’m untenured and need to kill a forest!”

“This is too hard!”  Cried Sir Yeal, “I don’t want to do this.  I am tenured!  I want to teach my seminar on the subject matter of my next article!”

“I can teach them writing,” cried a Stentorian voice.

“Who said that?” said the Ivy-clad Sirs.

“I did!” replied the voice.  “I am Leia Galreiting.  I would love to teach students the great art of writing for courts and law firms!”

“Great!” the Sirs said.  “We will pay you a pittance of what we earn.  Also, because you are only teaching them ‘skills,’ we will try to make sure you are reminded you aren’t as great as we are.  No tenure, low salary, more students, and we won’t recognize you in the hallways.  We will also complain that you are doing a terrible job, although none of us want it.”

“That’s fine.” Said Leia Galreiting.  “It beats killing myself at a firm.  I want to live.”

Things went well for a while.  Leia taught the students how to write, and the Sirs taught the students how to think like lawyers, as they would say.  The Sirs kept to their word:  They would not notice her in hallways, wouldn’t let her vote in matters of the school, and made her feel inferior.  It wasn’t just that her office was far away from theirs, it was that it was often located next to the offices of staff, and Leia knew how the Sirs felt about staff, as evidenced by the large “beware of Staff infection” signs posted everywhere along with “faculty—turn this way to avoid the common folk” signs.

One day, the fine Sirs realized that they could improve their lot compared to other schools by including Leia in their headcount.   The great judge of schools, Yooesnews, liked it when faculty/student ratios were higher.  The Sirs graciously decided to allow Leia to be a contractual employee, once they remembered her name was Leia.

“Okay, you still aren’t one of us, but you can stay.  Sign this three year contract.” The Sirs said.

“You have a few typos.  Let me fix those first.  Okay.  Signed.” Said Leia, as she signed the document.  She turned back to her computer.

“What are you writing?” asked the Sirs.  “Surely that isn’t scholarship.”

“It is!” said Leia.  “I am presenting an article on teaching legal writing at the Association of Law Schools and 8th Grade Popularity Contest!”

“That’s not scholarship!” The Sirs proclaimed.  “It’s not high theory.   Everything about you says low.  Everything about us says we are high!”

Leia and her peers at other schools started to gain respect, increasingly so after a wizard named Laissez Faire put a spell on the land that killed lots and lots of jobs for lawyers.  As a result, King ABA began to question what the Sirs were doing.  “It has nothing to do with what lawyers really do!” King ABA said.

In reality the distinction between practice and theory is just silly.  Theory helps define better practice, and without practice theoretical underpinnings lack foundation.  The near-sighted practitioner and the far-sighted professor both run into the same walls for lack of vision.  But King ABA was very near-sighted, and the Sirs were very far-sighted.   The King demanded that students take more and more classes from people like Leia, classes the Sirs could not teach, even if they wanted.

However, the Sirs continued to treat Leia and her lot like second class citizens.  No matter what Leia wrote, it was never good enough to be considered scholarship.  The Sirs still didn’t recognize her in the hallway, still didn’t let her have any serious voting rights, and blamed her for every writing mistake.  But no Sir ever offered or wanted to teach Leia’s class.  It was too hard.

Generations later, some of us Sirs wish these stupid hierarchies never existed, and that all the Sirs and Leias could all live happily ever after as coequals.

NOTE FROM AUTHOR:   Any hint of annoyance at other hierarchies, such as gender barriers in legal education, is purely intentional.