Levin Focuses on 'Pragmatic Administrative Law' at Installation

Ron Levin and Edward S. Macias

Ronald M. Levin discussed “Pragmatic Administrative Law” at his recent installation as the William R. Orthwein Distinguished Professor of Law.

Levin, a nationally known scholar who specializes in administrative law and related public law issues, provided both an explanation and a defense of administrative law pragmatism. He defined legal pragmatism as the evaluation of policies based on the way they actually work in practice.

As an example of the need for pragmatism in administrative law, Levin referred to his Duke Law Journal article, “‘Vacation’ at Sea: Judicial Remedies and Equitable Discretion in Administrative Law,” which discusses the courts’ practice of vacating rules and regulations that they believe are illegal. The article focused on the debate over whether the courts should be allowed to leave a current rule in place while an agency is in the process of revising it.

While some judges and legal experts argue that the law does not provide for this option, Levin stressed that it is necessary. “As a practical matter, courts need the power to remand rules without vacating them, because sometimes it would be very disruptive to suddenly eliminate a regulation that’s already gone into effect if people are depending on it,” he said.

Levin said that he used the term “administrative law pragmatism” to mean “a belief in trying to achieve social ends effectively through the use of the administrative process.” As an example, he discussed the case of Food and Drug Administration vs. Brown and Williamson Tobacco Corporation, in which the Supreme Court struck down FDA rules that restricted the sale of tobacco products to minors. The court said in part that these rules did not fit the statutory scheme because tobacco was, essentially, too dangerous to regulate. The dissent in that case called the majority’s interpretation “perverse,” and Levin agreed.

Levin noted that administrative solutions have the built-in advantages of an expert agency, a system of rule-making that emphasizes broad participation, the agency’s duty to respond to all points, and judicial review of the agency’s conclusions.

“From my point of view,” he said, “regulatory systems, including both generously defined powers for agencies and checks on the exercise of those powers, have a lot to offer. This balanced model ought to be something that everybody can get behind.” But, he added, much of society does not agree, so continued debate is inevitable.

Dean Kent Syverud and Professor Ron Levin

Michael Asimow, visiting professor of law at Stanford Law School and professor of law emeritus at the University of California, Los Angeles School of Law, introduced Levin. Levin and Asimow are co-authors of the widely-used casebook, State and Federal Administrative Law (now in its third edition). Edward S. Macias, Washington University provost, and Dean Kent Syverud, the Ethan A.H. Shepley University Professor, also gave remarks.

“The Orthwein Chair, one of our few distinguished chairs, recognizes Ron as a great professor who excels in scholarship, in the classroom, and in national law reform efforts,” Syverud said. “One of the leading authorities on administrative law, he writes genuinely authoritative scholarship that is pragmatic and useful to the best lawyers and judges. A decorated teacher and former associate dean, he also has had a tremendous influence on generations of our students.”

Previously the Henry Hitchcock Professor of Law, Levin has served on the law faculty for more than 30 years, including as an associate dean. In addition to his casebook and numerous law review articles, he is the co-author of a student text, Administrative Law and Process in a Nutshell (now in its fifth edition) and Administrative Law of the European Union: Judicial Review. Among his professional affiliations, Levin is active in the ABA Section of Administrative Law and Regulatory Practice, as well as the Administrative Conference of the United States.

The Orthwein professorship was established by William R. Orthwein, Jr. in honor of his father, alumnus William R. Orthwein, who received his law degree from Washington University (then St. Louis Law School) in 1905. Orthwein Sr. served as president of the Law School Alumni Association, was a founder of the Legal Aid Society of St. Louis, and was St. Louis’ collector of revenue. After working in private practice, he was vice president and counsel of the Kinloch Telephone Company of St. Louis.