Rosen Revitalizing ABA Section With More Debate, Programs

By Cheryl Bolen

July 6 — The chairman of the American Bar Association's Section of Administrative Law and Regulatory Practice set out a goal of re-energizing the section through new programs and publications.

“The big-picture issue—why do I want to do that—is because I’m really interested in what can make our government function better,” Jeffrey Rosen, who is also senior partner in the Washington office of Kirkland & Ellis LLP, told Bloomberg BNA in a June 30 interview.

Although plans for revitalizing the section's roughly 10,000 members had been underway since 2014, Rosen challenged the organization of lawyers, law students, academics and agency practitioners to become more engaged in debates and the policy process in Washington.

“I think doing these things creates the opportunity, on the one hand for people to learn from one another and conversely to try to persuade one another,” Rosen said. He assumed the chairmanship last August and was chairman-elect the year before.

Reaching Consensus

Coming to a consensus or contributing to a larger process—whether an agency or congressional process—to make the government work better is the goal, Rosen said.

At its midyear meeting Feb. 8, the ABA's House of Delegates approved a list of changes recommended by the section to modernize some of the rulemaking provisions of the Administrative Procedure Act, Rosen said. Among the changes, the resolution would authorize a new presidential administration to delay the effective date of rules finalized at the end of the previous administration and give the public opportunities to comment on whether those rules should be amended, rescinded or delayed.

“I think that’s a good illustration of how—when you have these programs and discussions, and people are writing and interacting—some things can constructively come out of that,” Rosen said. “That positions the section to be a useful contributor to the legislative process in that case.”

In January 2015, the House passed the Regulatory Accountability Act (H.R. 185) introduced by Rep. Bob Goodlatte (R-Va.) intended to modernize the APA, and the Senate is considering its version of the bill.

Early Interest

Rosen said he had an early interest in regulation stemming from his degree in economics at Northwestern University, where he studied “corrections for market failures,” of which regulation is a component.

But it was during his time as a litigator for more than 25 years at Kirkland & Ellis that the power of regulation really hit home. Rosen said he litigated, for example, cases in the electric power industry that were commercial contract disputes, but all affected by various Federal Energy Regulatory Commission regulations.

Rosen, a Republican, was nominated in 2003 by former President George W. Bush to serve as general counsel of the Department of Transportation. From 2006 to 2009, Rosen served as general counsel and senior policy adviser in the Office of Management and Budget.

Political ‘Mix' in Section

The section itself attracts a mix of Democrats, Republicans, conservatives, liberals, professors, practitioners, agency staff, lawyers who represent regulated parties and administrative law judges, Rosen said.

“It’s very diverse from multiple perspectives,” which is useful, Rosen said.

According to his biography, Rosen served as counsel to the Republican National Convention Platform Committee in 2012, but the section remains politically neutral.

When the question is whether there is too much or too little regulation, it is not easy to change someone’s views, Rosen said. But it is easier to find consensus if the issue is making regulation more rational, sensible, efficient, likely to accomplish its goals and not produce unintended side effects, he said.

Two Types of Arguments

There are two types of procedural arguments, Rosen said. There are those truly designed to produce process improvement, and then there are process arguments affected by a desire to change substantive outcomes, he said.

There’s more political debate about the latter, if someone thinks a process argument can affect whether a particular regulation goes ahead or not, or in what direction it goes, Rosen said.

But there are other process changes that are designed to make regulations more cost-effective, more supported empirically or produce more rational outcomes, Rosen said.

“And those are things I think people of a wide perspective of views can engage on and sometimes at least reach similar conclusions,” Rosen said.

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