The Stanford Law School Chapter of the Federalist Society hosted a student symposium this past weekend to discuss and debate “Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?” Around 500 law students from across the nation witnessed lively debates and presentations in Cemex Auditorium on March 2 and 3.

 

Twenty-five prominent legal scholars, practitioners and officials from across the nation, including five judges and Larry Kramer, dean of Stanford Law School, led the discussions. U.S. Senator Mike Lee (R-Utah), a member of the Senate Judiciary Committee, presented the keynote address at a banquet for 400 people Saturday night at the Arrillaga Alumni Center.

 

Students from a range of top law schools, including Harvard, Yale, the University of Chicago, Columbia University and the University of Texas at Austin, attended the 31st annual conference, which had not been held at Stanford since 1996.

 

Kramer said that one of the goals of the event was to “bring top lawyers and scholars from all sides of the issues to debate.”

 

Conference co-chair Ilan Wurman J.D. ’13 echoed Kramer’s sentiments, saying, “there was no answer in one particular direction [to the main question of the symposium] because we had a strong balance of liberal and conservative views on each panel.”

 

“The conservative panelists tended to answer that the administrative state needs to be diminished dramatically if it can coexist with principles of limited government,” Wurman said.

 

Friday evening’s panel discussing the “Rule of Law and the Administrative State,” was moderated by the Honorable Carlos Bea ’56, J.D. ’58, who currently serves on the U.S. Court of Appeals for the Ninth Circuit. In light of the plurality of voices, there were disagreements among the panelists regarding the definition of the rule of law, a term the speakers pointed out as originating from Aristotle and Locke. Panelists included Harvard Law School Professor David Barron, NYU Law School Professor Richard Epstein, Ohio State University Law School Professor Peter Shane and the Honorable Brett Kavanaugh, a judge on the U.S. Court of Appeals for the D.C. Circuit.

 

Panelists discussed whether the modern conditions of life and governmental administration require some redefinition of the rule of law. The opaque constitutional underpinnings of a regulatory state were hotly contested.

 

According to Wurman, the debate about the administrative state is crucial due to its omnipresence in the United States.

 

“The framers created a government that would enable self-government by channeling the passions of the people but also checking the ambition of the rulers,” Wurman said. He emphasized that this “required a rule of law and a separation of powers, but the administrative state often undermines these important principles.”

 

Barron, who served as acting Assistant Attorney General for the Office of Legal Counsel in the Department of Justice, said that “as the world grew more complex, more delegation was needed [to administrative rule-making] as Congress could not delve into everything.”

 

He added that a question remains regarding how to “regularize and confine” the administrative side of U.S. government. Some Federalist members refer to the administrative state as “a fourth branch of governance” alongside the traditional three branches of government.

 

Wurman emphasized how the rule of law is undermined by the inherent complexity of the legal system. Referencing the panel discussing “Congress v. Agencies: Gridlock, Organized Interests and Regulatory Capture,” Wurman said that “the most fascinating part for me was Professor Michael McConnell’s illustrations of just how voluminous and complex our modern laws are – such that not even lawmakers know what they are reading.”

 

Wurman noted that this recurring theme was re-emphasized by Lee in his keynote speech.

 

Barron added that there has been much “open-ended delegation [and growth in] the administrative state since the New Deal.”

 

“Congress makes rules, then delegates,” he said.

 

The panel on Technology and Regulation included PayPal co-founder Peter Thiel ’89,  J.D. ’92, Stanford Law School Professor Mark Lemley, Anthony Falzone of the Stanford Center for Internet and Society and Ted Ullyot, general counsel for Facebook. Panelists explored the relationship between technology and the administrative state. They considered to what degree development in technology has been slower than anticipated in recent years and whether the administrative state has been an asset or a hindrance to effective use of technology.

 

Thiel highlighted that the pace of technological development has been “decelerating” for several decades, but that the fields of finance and computers have provided exceptions. Thiel noted that both “computers and finance [have] been lightly regulated during the last 40 years.”

 

“Rocket scientists went to Wall Street because they weren’t able to build rockets,” he commented.

 

The panelists, including Thiel, urged extreme caution about regulation in the computer industry. The faster computer products are changed and undated, “the harder it is for government regulators to follow,” Thiel said.

 

“Cultivate, invest and get out of the way,” Falzone said.