Mimesis Law
21 January 2017

Cross: Jonathan Adler, Focusing On The Crush Of Regulation

December 7, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross Jonathan Adler, Johan Verheij Memorial Professor of Law, Director, Center for Business Law and Regulation and Volokh Conspirator.

Q. In 1991, you graduated magna cum laude from Yale with a degree in history. We’re not surprised your record of academic excellence reaches back that far, but we have to ask: why history? Where’s the connection to the environment, government, constitutional law, all the things that’ would preoccupy you in later years? Did you have a plan going in? Was law school always on the horizon? And did you ever guess you’d turn to the dark side, become a professor?

A: One summer in high school I took a course on early American political thought, and that class really sparked an interest in American political and intellectual history. I think those subjects helped lead to my interest in the law, as did the encouragement of my thesis advisor. Given my emerging politics, he suggested law school would be a safer route to academia than a Ph.D. in history or political science.

As he put it, the worst case scenario after law school would be getting well-paid as a lawyer. A Ph.D., on the other hand, would not open as many potential alternatives. That said, I really did not have much of a plan in college. By the time I graduated, I said I wanted to be a mid-level officer in the war of ideas, but wasn’t sure whether that meant becoming an academic, working in politics, or something else.

As for environmental policy, that grew out of my interest in the outdoors, and the time I spent growing up hiking, camping, fishing and hunting. Figuring out how to protect these things in a way that is compatible with other values is endlessly challenging and interesting.

Q. After undergrad, you spent nine years working as the Competitive Enterprise Institute’s director of environmental studies. What attracted you to the job, and how’d you get it? The job required you to have a thorough understanding of complex federal laws and regulations, but you didn’t have a law degree or any formal education in the field. Where did you get the chops to not only take on that role, but thrive in it? And what made you want to throw your hat in the ring as a libertarian environmental thinker, at a time when government and public opinion, broadly speaking, were headed in the opposite direction?

A: I ascribe much of my career to serendipity. I spent several summers in Washington, D.C. while in college, which allowed me to make significant connections at various think tanks and policy shops. That’s how I met the folks at CEI, which was then a tiny policy boutique headed by a guy named Fred Smith. Due to these connections, I was recommended for a job there – essentially as a policy analyst and research assistant to Smith – just before I graduated from Yale.

The idea of trying to apply libertarian principles to environmental problems was tremendously exciting and it seemed like a great way to spend a few years before figuring out what I was really going to do with my life. Little did I know, CEI was about to go through a massive growth spurt. When I showed up, it was a tiny place with only 8 people and a half-million-dollar budget. Within a few years, the organization had tripled in size, and I rode the wave, eventually taking over the environmental department. My role was to be the generalist who coordinated the specialists in what was a growing and increasingly influential program, and I guess I was good at it.

Q. During the 90s, CEI argued that federal environmental regulations weren’t just cumbersome, but ineffective (and frequently counterproductive). You lent your support to a new group of thinkers on the subject, known as free-market environmentalists, who championed regulatory reform and market solutions to environmental problems. And in that vein, on several occasions, you gave testimony to Congress on the encroachment of environmental laws on private property rights.

Looking back, were efforts to reform public thinking on the wisdom of state-sponsored environmentalism successful? How have things changed? Were subsequent administrations more responsive than the Clintons to the idea that less federal involvement is more? Just how cumbersome are we prepared to let things get before we come around?

A: I think the work we did at CEI in the 1990s was important, but I am not sure how successful we were. On the one hand, we helped develop some powerful critiques of traditional environmental regulation and helped legitimize the use of property-based or market-oriented approaches to some problems.

On the other hand, we failed to convince policymakers to rethink their overall approach to environmental policy. When Republicans took over Congress in 1995, for example, it was much easier to convince them that environmental regulation was bad than it was to convince them that they needed to embrace an alternative approach to environmental protection, and other than in a few select areas, the Bush Administration was not much better. Working with conservatives on these issues sometimes felt like banging my head against a wall.

Q. In 1996, while you were still employed at CEI, you chose to go back to school and get a law degree. You outdid yourself at George Mason, graduating summa cum laude and valedictorian. Why’d you make that move? To refine your knowledge? Or were you already planning to sign up with the academy? You clerked for Judge David Santelle on the DC Circuit, and you were a summer associate at the DC branch of Kirkland & Ellis. With a career in Biglaw as an option, why’d you choose to become a professor? Passion for teaching? Glutton for punishment? Or was it simply the right environment in which to develop your ideas?

A: After working at CEI for a few years, and finding myself waist-deep in regulatory policy, I realized I should go back to school. If I was going to play lawyer on TV, I should at least have the degree. And since I lived in Virginia, I realized I could get my degree at night at George Mason without having to go into debt. The aim, at that point, was not so much to get into academia as it was to flesh out my understanding of the law and perhaps gain the tools I would need if I ever wanted to pursue public-interest litigation.

During my summers at Kirkland, I focused on administrative law – basically helping the firm’s clients who were suing or getting sued by the federal government – and I thought I’d found what I wanted to do. I applied for clerkships on a lark – because it was something I wanted to do, but not because I thought I’d actually get one. My year on the D.C. Circuit was an amazing learning experience – perhaps the most educational year of my life – and it also provided the opportunity to continue working on some scholarly projects I had begun in school. Apparently some folks were reading what I was writing, as I was recruited at Case Western and figured the opportunity to become an academic was not one I should let pass by.

Q. In 2001, you left DC for Ohio when you were hired as assistant professor of law at Case Western. It turned out you had a remarkable gift for teaching: three years in, you received the Federalist Society’s Paul M. Bator Award for all-around professorial excellence, and in 2007, Case Western gave you its annual Distinguished Teacher Award. Nor were you behind in scholarship; in the past ten years, you’ve been consistently recognized as one of the most-cited authorities on administrative and environmental law (and the most cited of all in your youthful age group.)

Juggling the teaching and scholarship requirements of the job is a major challenge for many professors; how do you do it, let alone so successfully? And you made tenure in 2006. Now that your job’s secure, why aren’t you content to sit back and, like a sea squirt that’s found a place to attach itself, dissolve your own brain?

A: I’ve found that my teaching and scholarship actually complement each other. My regulatory policy experience in D.C. helped inform both, and I find that intellectual engagement with the subjects that I teach helps me bring more insight and energy into the classroom. Researching and writing on a subject makes it easier to teach. I also have largely been fortunate to teach in areas that I find inherently interesting, and I do what I can to communicate my enthusiasm for these subjects to my students.

Q. At around the time your law-professor career was taking off, Eugene Volokh founded Volokh Conspiracy, one of the longest-running and most influential blawgs (and definitely one of the most professorial). You’re an O.G. Conspirator, having joined as a pseudonymous contributor in 2002. Since then, you’ve become one of its leading lights. At the same time, due in no small part to VC’s migrating behind the WaPo paywall in 2014, its audience has grown massively and changed nearly as much. Is catering to the tastes and expectations of the WaPo readership as much of a change of pace as one would imagine? Do you ever feel pressure to reduce the complexity of what you write about, lest your message not get across? Is writing for a mainstream readership a healthy exercise in clarity? You’re not afraid to challenge liberal sacred cows. Has there been backlash or pushback from VC’s new fans? If so, does it matter to you, or are you used to all that from millennial students?

A: Blogging at the VC has been a tremendous opportunity and I’m quite grateful that Eugene invited me on board way back when. At the time, blogging was a fun outlet, but we had no idea where it might lead (let alone that we’d collect such a following).

For me, blogging is often a way to try out arguments and to explore issues that are more current or fast-moving than the focus of my scholarship. As you suggest, it’s also a good platform for learning how to discuss complex issues in a more accessible manner.

I don’t think I dumb-down my posts, but I do make an effort to keep my posts accessible to non-lawyers and non-academics, and I think this helps improve my other writing. I do not believe that legal writing has to be technical or obtuse to be effective. To the contrary, I think the best legal writing should be readily intelligible to lay readers. I hope that’s true of my blogging and my scholarship as well.

The shift to the Washington Post has been interesting. It’s certainly expanded our readership and reach, but it has also had some downsides. When Eugene first launched the VC, it was a small little site with a core dedicated readership that never hesitated to challenge our claims. The early comment sections often provided highly substantive commentary on our posts, and I would regularly read – and respond – to the more substantive comments.

This is something that’s been lost in the shift. A wider readership has also meant a wide array of commenters, including lots of people who are not particularly interested in substantive discussion. While many of our old commenters are still there, they often get drowned out by partisans and trolls. This makes it more difficult to engage substantively with the comment threads and, frankly, makes me less inclined to read the comment threads on my posts. I’m sure it’s discouraged some of our older commenters from continuing to engage as well.

Q. You’ve been a sought-after legal commentator for a while now, and last year, when you took a bold, public and confident stance in opposition to the Supreme Court’s ruling in King v. Burwell, you knew what you were getting into. When CJ Roberts delighted fans of the ACA by putting aside concerns over what the law said in favor of SCOTUS’ interpretation of what the government wanted it to do, manufactured statutory ambiguity and rewrote the law accordingly, you were there, calling shenanigans from atop the WaPo’s soapbox.

In short, the decision wasn’t exactly a textualist’s wet dream. And instead of resolving the law’s “ambiguity” by applying Chevron doctrine and deferring to the feds’ interpretation, SCOTUS went ahead and inserted its own. The icing on the cake is that it did so by declaring the problematic parts of the law meaningless. What does this kind of judicial fiat imply for textualism? The future of Chevron deference? The notion that courts don’t exist to legislate? Has CJ Roberts gotten too big for his boots? What’s to be done?

A: I would not write the things I do if I expected courts – let alone the Supreme Court – to follow my lead. The King litigation was something of an accident, in that I first wrote about the relevant provisions in the ACA without any knowledge that the Administration was planning to (in effect) rewrite the statutory text, let alone that someone would sue over it and take the litigation to the Supreme Court.

Yet once the litigation began, I was not about to change my interpretation of the law just because it was controversial. But I also never expected the plaintiffs to prevail. I am no fan of the King decision (a point I’ve made at length), but (as I’ve also written) I think it fits with the Chief Justice’s general approach to deciding high-stakes cases. Whatever commitment the Chief has to textualism takes a backseat to his reluctance to embrace broad decisions with potentially disruptive consequences. What this meant in King is that he would not embrace a reading of the statutory text – a reading he himself called the “most-natural” reading – if it meant a dramatic change in the way the law was being implemented.

I appreciate the concern that following the statutory text would have made millions of people ineligible for health insurance tax credits, but I also believe that fixing such problems is the job of Congress, and not the courts. Legislators created the mess, and we should expect legislators to fix them. That said, I think that some parts of the decision, such as the curtailment of Chevron deference, are important silver linings and could have a positive effect down the road.

Q. Speaking of deference, you’ve been commenting on a related legal drama: federally-compelled bathroom access for transgender students. DoE interprets Title IX, which authorizes it to police discrimination based on “sex,” as covering gender identity. Others disagree, pointing out that the meaning of “sex” in 1972 doesn’t allow for that possibility and that Congress’ consistent refusal to amend the law to address gender-identity discrimination speaks volumes.

Some courts have been all too quick to defer to DoE. In a recent VC post, you pointed out that a now-stayed Fourth Circuit decision confused Auer with Chevron deference, applying the wrong doctrine in its haste to give the feds the green light. But you’ve also said that deferring to DoE here may not be entirely wrong, because “sex,” as used in Title IX, could be sufficiently ambiguous to make the feds’ interpretation legit. How’s that possible, given that in 1972, “sex” was universally understood to refer to “male” or “female” as expressed in chromosomes and sex organs? Where’s the ambiguity here?

A: I’m a textualist, and I don’t put much faith in ex post efforts to discern congressional purpose from extra-textual sources. The text is what goes through bicameralism and presentment. Unstated intentions do not. This is why I took the position I did in King, and it also explains my views on Title IX.

In Title IX, Congress prohibited discrimination “on the basis of sex.” It also made clear that equal sex-specific facilities (such as bathrooms or lockers) are permissible. What Congress did not do, however, is define “sex,” or otherwise explain how the law should apply to individuals of indeterminate sex, such as intersex individuals or those born with X-X-Y chromosomes, or to transgender individuals. If someone is transitioning from male-to-female or vice-versa, at what point should they be recognized as one sex or the other? Title IX provides no guidance on this point.

As a consequence, under current doctrine, it is up to the agency to resolve this ambiguity. As I’ve argued on the VC, I think this means the Education Department could adopt regulations that provide some degree of protection for transgender individuals. Yet as I’ve also explained, that’s not what they did.

Q. As a libertarian, you’ve survived for over fifteen years in an academic milieu that’s noted for its hostility to non-progressive thought. What’s the secret? Why are you willing to challenge liberal orthodoxy on things ranging from environmental regulations to the viability of the ACA as written, when so many other professors are terrified to do things as mild as criticize political correctness? What about those who applaud when public colleges violate students’ First Amendment rights? What’s wrong with the ivory tower?

And what about your students? You’re a gifted and well-liked teacher, but even so, a quick perusal of ratemyprofessor.com shows some of them wish you were more liberal. What are you doing to cope with the zeitgeist?

A: I’m not sure I have any secret. Given all of the policy work I did in the 1990s, including countless op-eds on a range of subjects and contributions to National Review Online, my political orientation was never much of a secret. I have, however, always sought to engage others with civility and respect, even when these courtesies were not returned. I’ve felt that if I set a good example for how to engage in civil discourse, this will be appreciated more often than not – and deprive my critics of extraneous reasons to attack me.

I know that some students don’t like my politics, but I think most would tell you that I rarely discuss my personal views in class. My job as a professor is to help teach my students how to think, not what to think. I take that obligation seriously, and I think (and certainly hope) that most of my students appreciate that.

Q. After fifteen years as a professor and twenty-five as a public intellectual, you’ve got unimpeachable cred and a stellar record to look back on. So what’s in your future? Are you happy teaching, giving talks and publishing articles, or do you secretly want a change of pace? A career in litigation? A seat on the bench and a robe to go with it? What’s next for Jonathan Adler?

A: I think it’s safe to say that I won’t be facing a Senate confirmation anytime soon (if ever), and that’s okay. I do the work I do because it is of interest to me, not to curry favor with politicians or set myself up for some other job. As I see it, I have one of the best jobs in the world. I am essentially paid to learn and think about interesting subjects and to help communicate this knowledge and understanding to others. For a dork like me, that’s pretty ideal.



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  • Anonymous
    11 December 2016 at 2:20 pm - Reply

    One of my favorite profs at GMUSL. Only book I didnt get rid of after school was the admin law book from his class. Who knew it would be so interesting!