Administrative law is the body of law and regulation that covers the administrative structures used to manage specific aspects of the authority given to government. You can sort of think of it as the area of law that helps keep government honest. It’s an inevitable outgrowth of modern governance, and it offers a dizzying array of specialty areas for lawyers interested in almost any topic, from the environment, to entertainment, to energy and land use.
Administrative law is important because it covers so many of the basic mechanics of daily life in a well-regulated modern society. Many people will go their entire lives without any real interaction with either the civil or criminal court system. But the same isn’t true of administrative law—almost everyone files taxes, or will apply for a license of some sort, or file for unemployment or similar assistance at some point. Each of those, and most other direct interactions that citizens have with government are guided by administrative laws. And any friction they might experience along the way falls squarely into the purview of administrative lawyers.
Admin legal practice isn’t its own consolidated specialty. Because it rises out of rule-making authority delegated to executive agencies with a wide range of responsibilities, at both the federal and state levels, there are just a mind-boggling array of venues where you might choose to practice your trade. These can include:
Each of these has their particular body of code and quirks of administration and decision-making that can easily absorb an entire career in the legal field.
While there are thousands and maybe millions of lines of statutes on the books that have been duly passed by elected legislatures, the details of how all that code is implemented is most commonly delegated out to other government bodies… the Environmental Protection Agency, Department of Labor, Department of Education, and hundreds of state-level agencies.
That makes for a huge body of administrative regulation to be followed and adjudicated.
According to a 2017 article in Forbes, there are roughly 18 administrative rules issued for every actual law on the books. Between 1995 and 2016 alone, there were almost 90,000 new rules issued at the federal level alone, a ratio of 27 administrative rules for every 1 actual law. As of 2019, the Congressional Research Service estimates that somewhere between 3,000 and 4,500 new rules are passed each year, an increase of about 1,000 per year from the rate found in 2017.
And those rules aren’t always cut-and-dried. There are many subtle gradations in admin law that require particular attention and adept legal interpretation to work with. Guidance, interpretative rules, housekeeping rules, statements of policy, informal rules… each represents a class of law that has more or less effect, and greater or lesser weight, that bears on your client’s obligations or responsibilities.
More changes, happening more quickly, means it takes a special kind of legal mind to embrace and interpret it all for clients, or, on the other side of the table, for the policymakers that initiate the rules in the first place. Administrative law is an acquired taste, according to the Honorable David S. Tatel, a respected jurist on the United States Court of Appeals for the DC Circuit, but, as he says, like a fine scotch, it’s a taste worth acquiring.
Where there are rules, there are disputes. The administrative legal system has arisen to handle aspects of violation and interpretation of administrative rules in the same way that the conventional court system adjudicates statutory law. By most measures, the administrative law system is likely even larger than the criminal and civil justice system in the United States.
Parallel court systems have arisen within the various admin law structures of the country where many of these disputes are settled in a streamlined process that resembles, but does not duplicate, normal courtroom procedure. Administrative law tribunals in the U.S. include:
Lawyers are particularly useful in administrative legal matters in the interface between admin law and the realm of statutory law. This happens when rules are challenged in the conventional legal system, or by provisions within existing regulations that allow appeals to move up the ladder to a court of law, such as the United States Court of Appeals for the Federal Circuit. While paralegals and other individuals can sometimes be certified to practice as counsel within administrative systems, only a lawyer is allowed to escalate matters to the justice system by filing motions or lawsuits outside the administrative courts.
Administrative law courts develop their own standards for who may or may not appear before them. The Patent Office requires practitioners to register and become tested on their Rules of Professional Conduct, for example.
Like the general legal system, a set of procedures has arisen around administrative law that lawyers have to become familiar with. At the federal level, the Administrative Procedure Act of 1946 lays out most of what you will need to know about administrative practice. At the state level, the Model Administrative Procedure Act laid out by the Uniform Law Commission serves a similar purpose, although it has not been adopted by every state.
Although earning a specialized certification is not required to get started in administrative law practice, a handful of state bar associations offer the option of becoming a certified legal specialist in this area. You can expect that in those particular states, certified lawyers are going to have an edge in finding clients or jobs in this practice area over non-certified lawyers.
The process typically involves only passing a required test demonstrating your knowledge, skills, and proficiency in the subject area, engaging in approved continuing education in the area, along with accumulating a certain amount of experience practicing both admin law and law in general.
The state associations that offer administrative law certifications include:
Lawyers are also in demand on the other side of the table in admin law: working for government agencies to craft those regulations in the first place. This takes a strong knowledge of not only current rules and regulations, but also the governing statutes and precedents that enable such rule making.
Not only do they spend a lot of time writing the rules that are put into effect, but many jobs involve researching existing and historical rules to understand how they impact current authority or evaluate how rules would impact theoretical situations being explored by legislators. The American Law Division of the Congressional Research Service is one example of admin lawyers in this role, but similar jobs exist at the state level or even in private entities.
Those include association lawyers, who work for major industry bodies like the American Medical Association or immigration non-profit associations. Even the American Bar Association devotes a lot of time to influencing and crafting rules in areas of interest for their groups.
Studying economic impact, considering enforcement mechanisms, soliciting and analyzing public feedback, and describing and briefing interested parties on the scope of regulations are all important jobs for lawyers in these roles.
There’s another role open to lawyers in administrative law; a judicial one.
Administrative law judges, also known as Article I judges, are the people who hear and decide all those administrative law disputes happening in various agencies. The APA carves out this role to ensure some independence and decision-making power similar too, but not as expansive, as Article III judges. But a lawyer with sufficient trial experience, reputation, and who can pass the tests set out by the federal Office of Personnel Management can be hired into one of these roles.
The scope and specific areas of practice are the same as administrative lawyers, so it’s a good way to continue practicing in your specific area of expertise while taking on more authority and exploring new ways of approach the law—as a decision-maker rather than an advocate. It can be a satisfying coda to a career built in administrative legal practice and a fine use of the skills you’ll have built along the way.
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