Conversation between Justice Stephen Breyer and Richard Stewart caps off celebration of Stewart’s 50th year of teaching

University Professor Richard Stewart’s current and former colleagues and students gathered virtually on January 12 for a daylong workshop on the future of the regulatory state and its impact on administrative, environmental, and international law. The event doubled as a celebration of 50 years of teaching by Stewart, one of the world’s leading scholars in environmental and administrative law, and concluded with a conversation between Stewart and US Supreme Court Justice Stephen Breyer.

Richard Stewart
Richard Stewart

Stewart taught at Harvard Law School from 1971 to 1989 before serving as assistant attorney general for environment and natural resources in the US Department of Justice. In 1992 he joined the faculty of NYU Law, where he eventually served as chair and faculty director of the Hauser Global Law School Program. Stewart is currently the faculty director of the Frank J. Guarini Center on Environmental, Energy, and Land Use Law, which organized the workshop.

Panels on administrative law, environmental law, global governance, and applications to practice were moderated by experts who included Charles Seligson Professor of Law Rachel Barkow, Dean Emeritus and AnBryce Professor of Law Richard Revesz, Professor Philippe Sands of University College London, and environmental lawyer Jane Stewart ’79. Among the panelists were Cass Sunstein, former administrator of the Office of Information and Regulatory Affairs; Sabino Cassese, a former judge of the Constitutional Court of Italy; Murry and Ida Becker Professor of Law Benedict Kingsbury; and Professor Kristina Daugirdas ’05 of the University of Michigan Law School.

Near the end of the day, after Stewart had responded to ideas raised in the panels, he welcomed his former Harvard Law School classmate and colleague—and casebook co-author—Justice Stephen Breyer. The justice began their virtual conversation by invoking Henry IV Part 2, in which old Justice Shallow reminisces with a friend about their law school days.

Breyer soon pivoted from the Elizabethan era to a much more recent century in which Stewart, considered a pioneering administrative law academic, wrote a seminal Harvard Law Review article, “The Reformation of American Administrative Law” (1975). The article originated the now-accepted notion that individuals other than those directly affected by a regulation have a right to an agency or court hearing. Four years later, Breyer and Stewart published their casebook, Administrative Law and Regulatory Policy, one of the earliest textbooks in that area.

In his conversation with Stewart, the justice next considered the problem of how to teach administrative law. “Why do we think it’s the subject?” Breyer asked. “Because it’s really about how do we run this country, and how do we share power in a world where we have to deal with lots of substantive problems. And that’s always been the problem for ad law professors. Do you teach this subject as a system of ad law rules—everybody thinks that’s too far removed from reality—or do you get into the details and the substantive subject matter of particular agencies, and everyone thinks, ‘Oh, there are too many, but we should have some’? And so you’re juggling that.”

Breyer said that the biggest shift he’s observed in administrative law involves the advent of the Chevron doctrine, a principle of judicial review compelling federal courts to defer to federal agencies in interpreting ambiguous statutory language. “What I find surprising in what’s changed is this tremendous division—politically based, in a sense—on whether we should have Chevron or not. Do you really want judges deciding something like—think of the most technical thing you can? Why would judges be able to decide this better? That doesn’t mean that agencies are always better, but it means you need some rules that keep them within a certain boundary. Well, there you are. That’s administrative law.”

Stewart asked Breyer for his take on the relaxation of restrictions on standing and ripeness, a change that has prompted pre-enforcement review of regulations as soon as they are issued. Citing an article by former White House counsel Lloyd Cutler, Breyer responded, “[Cutler] said our problem…is a refusal to delegate responsibility to authorities within the executive branch. Because sometimes the answer is not a rule. Sometimes the answer is, ‘Don’t go too far.’ Sometimes the answer is, ‘Let’s try it.’ Sometimes the answer is, ‘Try it, maybe we’ll modify it.’ 

“And if you want to see who thought that was a great thing about America,” the justice continued, “read Tocqueville. That’s how, he said, they decide things in this country. They debate them, they try something out, then they try something else out. So freezing people in rules that take…a long time to write and then are hard to change, that has its disadvantages. There is no rule that tells you when to proceed by rules and when not to proceed by rules. All I can say is you don’t want the law to take away the power to make that kind of decision.”

Posted February 19, 2021