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FORMAL RULEMAKING AND JUDICIAL REVIEW: 

PROTECTING JOBS AND THE ECONOMY WITH 

GREATER REGULATORY TRANSPARENCY AND 

ACCOUNTABILITY 

HEARING 

BEFORE THE

SUBCOMMITTEE ON COURTS, COMMERCIAL 

AND ADMINISTRATIVE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

MAY 31, 2011 

Serial No. 112–49 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

LAMAR SMITH, Texas, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TIM GRIFFIN, Arkansas 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

DENNIS ROSS, Florida 

SANDY ADAMS, Florida 

BEN QUAYLE, Arizona 

[Vacant] 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

TED DEUTCH, Florida 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

SEAN MCLAUGHLIN, Majority Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON COURTS, COMMERCIAL AND ADMINISTRATIVE LAW

HOWARD COBLE, North Carolina, Chairman 

TREY GOWDY, South Carolina, Vice-Chairman 

ELTON GALLEGLY, California 

TRENT FRANKS, Arizona 

DENNIS ROSS, Florida 

[Vacant] 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

MELVIN L. WATT, North Carolina 

MIKE QUIGLEY, Illinois 

DANIEL FLORES, Chief Counsel 

JAMES PARK, Minority Counsel 

(III) 

C O N T E N T S 

MAY 31, 2011 

Page 

OPENING STATEMENTS 

The Honorable Trey Gowdy, a Representative in Congress from the State 

of South Carolina, and Vice-Chairman, Subcommittee on Courts, Commercial and Administrative Law ............................................................................... 1 

The Honorable Mike Quigley, a Representative in Congress from the State 

of Illinois, and Member, Subcommittee on Courts, Commercial and Administrative Law ........................................................................................................ 3 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 5 

WITNESSES 

Edward W. Warren, P.C., Kirkland & Ellis, LLP 

Oral Testimony ..................................................................................................... 29 

Prepared Statement ............................................................................................. 31 

Noel J. Francisco, Esq., Jones Day LLP 

Oral Testimony ..................................................................................................... 172 

Prepared Statement ............................................................................................. 174 

Matthew C. Stephenson, Professor, Harvard Law School 

Oral Testimony ..................................................................................................... 185 

Prepared Statement ............................................................................................. 187 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Trey Gowdy, a Representative in Congress from the State of South Carolina, and Vice-Chairman, Subcommittee 

on Courts, Commercial and Administrative Law .............................................. 2 

Prepared Satement of the Honorable Mike Quigley, a Representative in Congress from the State of Illinois, and Member, Subcommittee on Courts, 

Commercial and Administrative Law ................................................................. 6 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 18 

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Response to Post-Hearing Questions from Edward W. Warren, P.C., Kirkland 

& Ellis, LLP .......................................................................................................... 216 

Response to Post-Hearing Questions from Noel J. Francisco, Esq., Jones Day 

LLP ........................................................................................................................ 222

Response to Post-Hearing Questions from Matthew C. Stephenson, Professor, 

Harvard Law School ............................................................................................ 227 

(1) 

FORMAL RULEMAKING AND JUDICIAL REVIEW: PROTECTING JOBS AND THE ECONOMY WITH GREATER REGULATORY TRANSPARENCY AND ACCOUNTABILITY 

TUESDAY, MAY 31, 2011 

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON COURTS, 

COMMERCIAL AND ADMINISTRATIVE LAW, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 4:05 p.m., in room 

2141, Rayburn House Office Building, the Honorable Trey Gowdy, 

(Vice-Chairman of the Subcommittee) presiding. 

Present: Representatives Gowdy, Franks, and Quigley. 

Also Present: Representative Conyers. 

Staff Present: (Majority) John Hilton, Counsel; Johnny Mautz, 

Counsel; Allison Rose, Professional Staff Member; Ashley Lewis, 

Clerk; (Minority) James Park, Subcommittee Chief Counsel; and 

Susan Jensen-Lachmann, Counsel. 

Mr. GOWDY. The Subcommittee will come to order. This is the 

Subcommittee on Courts, Commercial and Administrative Law. It 

is a hearing on formal rulemaking and judicial review, protecting 

jobs and the economy with greater regulatory transparency and accountability. 

I want to welcome our three witnesses. I will recognize myself for 

an opening statement and then recognize the gentleman from Illinois. 

Today the Subcommittee continues to examine whether Washington’s regulatory scheme cycles job creation and impedes economic 

growth, and will look at practical, commonsense alternatives to the 

status quo which has placed a $1.75 trillion regulatory burden on 

the back of our economy. 

Our specific focus today will be on whether increased use of formal rulemaking and more vigorous judicial review can help to take 

unnecessary and redundant deleterious regulations out of the equation. 

For the first 3 decades after the Administrative Procedure Act 

was adopted in 1946, agencies routinely made regulations by formal rulemaking. As a former prosecutor I am aware of the value 

of this process. Like a trial, formal rulemaking allows persons who 

are affected by a proposed regulation to introduce evidence, call 

2 

witnesses to testify under oath, and, most critically, cross-examine 

other witnesses. 

Since the 1970’s, however, agencies have avoided formal rulemaking whenever possible, and courts rarely require agencies to 

engage in it. Instead, agencies make regulations through informal 

notice and comment procedures. This offers the public and regulated entities less opportunity to challenge agency predispositions 

in the rulemaking process. It also shields burdensome rules from 

the most effective way to vet them for mistakes. 

Another factor that encourages excessive regulation is the deferential standards of judicial review courts apply when a regulation is challenged. When an agency makes a regulation through informal rulemaking, a court will uphold that regulation unless it is 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. A regulation made by formal rulemaking is 

upheld if it is based on substantial evidence, but courts often treat 

these standards as identical and lenient, which I am sure our witnesses can and hopefully will address. 

The Supreme Court has held that a court should be, quote, at its 

most deferential when an agency makes a scientific determination 

in the process of rulemaking. This principle has been called ‘‘superdeference,’’ although that term certainly cannot be found anywhere 

in the text of the Administrative Procedure Act. Courts defer to 

agencies’ legal conclusion according to the well-established Chevron 

doctrine. If Congress has granted an agency the discretion to make 

a rule, then the rule will be upheld if it is reasonable. Less clear 

is how a court should treat an agency’s own determination of 

whether Congress actually granted the agency the discretion to 

make the rule in the first instance. 

Relatedly, courts also defer to an agency’s own interpretation of 

its own sometimes ambiguous regulations. How a court should approach these questions is up for discussion at today’s hearing. 

Finally, at our hearing on February 28, 2011, we heard testimony that courts should be able to review agency compliance with 

the Information Quality Act and other statutes that are ancillary 

to the APA rulemaking process. This Subcommittee will also hopefully be able to explore that suggestion in more depth today. 

I look forward to our witnesses’ testimony. And again I thank 

you for your presence. 

[The prepared statement of Mr. Gowdy follows:] 

Prepared Statement of the Honorable Trey Gowdy, a Representative in Congress 

from the State of South Carolina, and Vice-Chairman, Subcommittee on Courts, 

Commercial and Administrative Law 

Today the Subcommittee continues to examine why Washington’s regulatory system stifles job creation and impedes economic growth, and will look at practical, 

common-sense alternatives to the over-burdensome status quo that has placed a 

$1.75 trillion regulatory burden on the back of our economy. 

Our specific focus today will be on whether increased use of formal rulemaking 

and more vigorous judicial review can help to tame out-of-control regulation. 

For the first three decades after the Administrative Procedure Act was adopted 

in 1946, agencies routinely made regulations by formal rulemaking. As a former 

prosecutor, I am aware of the value of this process. Like a trial, formal rulemaking 

allows persons who are affected by a proposed regulation to introduce evidence, call 

witnesses to testify under oath, and—critically—cross-examine other witnesses. 

Since the 1970s, however, agencies have avoided formal rulemaking whenever 

possible, and courts rarely require agencies to engage in it. Instead, agencies make 

3 

regulations through informal, notice-and-comment procedures. This offers the public 

and regulated entities less opportunity to challenge agency predispositions in the 

rulemaking process. It also shields burdensome rules from the most effective way 

to vet them for mistakes. 

Another factor that encourages excessive and misguided regulation is the deferential standards of judicial review courts apply when a regulation is challenged. When 

an agency makes a regulation through informal rulemaking, a court will uphold that 

regulation unless it is ‘‘arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law.’’ A regulation made by formal rulemaking is upheld if it is 

based on ‘‘substantial evidence.’’ But courts often treat these standards as identical 

and lenient, which I am sure our witnesses can address. 

The Supreme Court has held that a court should be ‘‘at its most deferential’’ when 

an agency makes a ‘‘scientific determination’’ in the course of rulemaking. This principle has been called ‘‘super-deference,’’ although that term certainly is not found 

anywhere in the text of the Administrative Procedure Act. 

Courts defer to agencies’ legal conclusions according to the well-established Chevron doctrine: If Congress has granted an agency the discretion to make a rule, then 

the rule will be upheld if it is reasonable. But less clear is how a court should treat 

an agency’s own determination of whether Congress actually granted the agency the 

discretion to make the rule. Relatedly, courts also defer to an agency’s own interpretation of its own ambiguous regulation. How courts should approach these questions 

is up for discussion at today’s hearing. 

Finally, at our hearing on February 28, 2011, we heard testimony that courts 

should be able to review agency compliance with the Information Quality Act and 

other statutes that are ancillary to the Administrative Procedure Act rulemaking 

process. The Subcommittee will be able to explore that suggestion in more depth 

today. 

I look forward to our witnesses’ testimony and reserve the balance of my time. 

Mr. GOWDY. At this point, I recognize the gentleman from Illinois, Mr. Quigley. 

Mr. QUIGLEY. Thank you, Mr. Chairman. As the overarching procedural framework for the Federal administrative agencies, the Administrative Procedure Act, or APA, is largely responsible for creating a regulatory process that is best characterized as balanced. 

On one hand the APA provides procedural protections sufficient to 

guarantee all affected parties both due process and decisions based 

on accurate factual findings. On the other hand, it gives administrative agencies a great deal of rulemaking informality and flexibility. It is this informality and flexibility that allows agencies to 

confront the myriad of complex problems that American society 

must face to protect the public from harm. 

Congress has generally seen fit to permit this level of flexibility 

because of the agencies’ expertise in specific areas of public policy. 

This allows the agencies to tailor their response to specific problems in a way that Congress, the courts, and the elected executive 

branch officials cannot. 

In light of the need to maintain this balance developed over decades of practice, agencies have largely abandoned formal rulemaking in favor of the still substantial procedural requirements of 

informal rulemaking. Likewise, the courts have adopted a stance 

that is mostly deferential to agency decision making, while still exercising real scrutiny through the, ‘‘Hard-Look Doctrine’’ under 

which courts will carefully scrutinize an agency’s informal rulemaking process while being careful to avoid the taint of ‘‘rulemaking from the bench.’’ 

Both the expanded use of formal rulemaking and more stringent 

judicial review of agency rulemaking conflict with the longstanding 

balance between procedural protections and rulemaking flexibility, 

4 

and they would hamper government’s ability to respond promptly 

to pressing societal problems. 

Most scholars of administrative law, regardless of ideological persuasion, appear to agree that expanding the use of formal rulemaking is effectively the equivalent of simply stopping rulemaking 

in its tracks. 

Formal rulemaking is an adversarial process in which the agency 

and affected parties engage in a trial-type process to determine 

whether a proposed rule should go into effect. Moreover, formal 

rulemaking places the burden of proving that a proposed rule is 

supported by substantial evidence on the agency, which is a fairly 

high burden to meet. 

More than two generations of expertise with formal rulemaking 

has taught us that it adds little to the accuracy or fairness of the 

rulemaking process, while tremendously increasing costs and delay. 

Similar concerns exist with respect to imposing a more stringent 

judicial review standard. As with the expanded use of formal rulemaking procedures, Congress considered and rejected creating a 

more stringent judicial review standard for agency rulemaking 

back in the early 1980’s. The concerns expressed then continue to 

exist today. Heightened judicial review would increase costs and 

delay in the process by opening the door to unending appeals in 

which parties opposed to a given rule will ask simply to secondguess the wisdom of that rule. 

Finally, we should be careful about extending judicial review requirements to other statutes that touch on administrative procedure, including the Information Quality Act, or IQA. 

While the discussion of how much regulation we should have in 

our society today is one we should embrace, it is also one we must 

get right. There is indeed a healthy tension between the tug on industry to be free of constraints to fuel innovation, growth in job 

creation, and the duty of regulators to shape policy that will thrive 

to the public’s health, safety, and welfare. 

Effective regulation is a complex balancing act, the result of a 

vigorous process that weighs costs against benefits. 

While I look forward to hearing the testimony of our distinguished panel of witnesses today, I am inclined to think that the 

rulemaking procedures instituted by the APA and further clarified 

by the courts have properly struck this balance. 

Mr. Chairman, I close with an anecdotal reminder that we 

should be wary of returning to an APA of old. In the 1960’s, of the 

16 formal rulemakings under the Food, Drug, and Cosmetic Act, 

not one was completed in less than 2 years, and the average time 

that elapsed between first proposal and final order was 4 years. In 

one proceeding, the question concerned whether the FDA should require that peanut butter contain at least 90 percent peanuts as opposed to 87 percent peanuts. In the peanut butter case, a government witness was cross-examined for an entire day about a survey 

of cookbook and patented peanut butter formulas, missing recipes, 

and his personal preferences regarding peanut butter. 

I think that you and I can agree that while we may celebrate the 

fact that the personal peanut butter preferences in this room likely 

range from extra creamy to extra chunky, America has far too 

5 

many challenges in front of it today to dedicate taxpayer resources 

to investigating such matters. Thank you, and I yield back. 

Mr. GOWDY. I thank the gentleman from Illinois. 

The Chair at this point would recognize the former Chairman of 

the full Committee, the gentleman from Michigan Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Trey Gowdy, Vice-Chairman of 

this Subcommittee, who in your first term has accomplished more 

than most Members of Congress. Your meteoric rise is sometimes 

frightening. But I am happy to be here with you and will try to remind you of some of the history that is involved in this notion of 

having agencies have trials in terms of their rulemaking. And as 

a former prosecutor, you have gotten into that mode pretty well 

across the years, and you have done quite brilliantly in that regard. 

Mr. GOWDY. Thank you. 

Mr. CONYERS. But this is not a trial. The agency rules should not 

be subjected to a trial. The infamous peanut butter case with the 

FDA, in which it took 10 years under the process that you now recommend to determine whether 90 percent or 87 percent of the peanut butter should have peanuts in it, that is almost Saturday 

Night Live material. 

But I want to also remind you that even another colleague of 

ours in the other body, Mark Warner, is sympathetic to some kind 

of change. But he has restrained himself—even though I might remind you that he too is a freshman in the other body—about this 

whole idea. 

Now, I am going to study your comment that the more formalized rulemaking will help create jobs. This is the most astounding 

statement that I have heard this week in the House of Representatives. And as one who comes from a place that needs jobs desperately, if there is a scintilla of evidence that would support that 

premise, you and I are going to be on whatever legislation that you 

will attach to that theory. It is clearly another way of trying to stop 

the ObamaCare bill, as I like to call it, the new health care reform 

measure, by subjecting it to even more delay because there are so 

many requirements for agency regulations. And I want to give the 

conservative leadership credit in the House, that even after they 

lose the vote, they never give up. And I admire that kind of determination to even undermine a popular vote in the House of Representatives. 

It reminds me of what the dean of the House of Representatives, 

John Dingell of Michigan, talked about in 1982. I don’t know what 

you were doing then. I warrant you weren’t even practicing law 

then. But nevertheless, Chairman Dingell talked about that they 

were opposing comprehensive regulatory reform legislation that follows to a ‘‘T’’ what is being proposed in the notion that is before 

us today. And Chairman Dingell charged opponents with the accusation that the legislation wouldn’t improve Federal rulemaking 

but rather would harm it by creating further delays and giving a 

small group of people an unfair advantage in getting heard during 

the process. 

I have some other comments to make, but I think you get my 

drift. I will turn back my time and thank you for allowing me to 

speak. 

Mr. GOWDY. I thank the gentleman from Michigan. 

6 

Without objection, other Members’ opening statements will be 

made part of the record. 

[The prepared statement of Mr. Quigley follows:] 


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[The prepared statement of Mr. Conyers follows:] 


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Mr. GOWDY. We have a very distinguished panel of witnesses 

today. Each of the witnesses’ written statements will be entered 

into the record in its entirety. I ask that each witness summarize 

his testimony in 5 minutes or less. To help you stay within that 

time frame, you will notice, hopefully, some lights illuminating red, 

yellow, and green. And they mean what they traditionally mean. 


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So without further ado, I will introduce, starting from my left to 

right, your right to left, Mr. Edward W. Warren who is with the 

environmental practice group at Kirkland & Ellis, considered one 

of the first generation of environment attorneys. Mr. Warren has 

been practicing environmental law almost since the EPA was 

founded. Despite his youthful appearance, I assume that that is a 

correct statement. A renowned litigator, Mr. Warren is a leading 

practitioner in the environmental practice group at Kirkland & 

Ellis. He received his B.A. Degree from Yale. After graduating from 

the University of Chicago law school, he clerked for judge Luther 

Swygert on the U.S. Court of Appeals for the Seventh Circuit. He 

is an adjunct professor at the University of Chicago and has taught 

administrative law at Georgetown and appellate litigation at 

George Mason University. He is a member of the American Law Institute and chairman of the Federalist Society’s administrative law 

practice group. Suffice it to say he is one of the foremost experts 

in the country. 

So at this point, we will recognize Mr. Warren for his 5 Minutes. 

TESTIMONY OF EDWARD W. WARREN, P.C., 

KIRKLAND & ELLIS, LLP 

Mr. WARREN. Thank you. Thank you very much. And thank you 

for the opportunity to testify before this Committee this afternoon. 

Mr. CONYERS. Mic, please. 

Mr. WARREN. I am sorry. Can you hear me now? 

Mr. CONYERS. I can. 

Mr. WARREN. I have taught administrative law for a number of 

years, since 1995. But equally important, as the Chairman suggested, I have been an administrative law practitioner and litigator 

since 1970. 

This afternoon I will share with you my perspective about how 

administrative law has changed since I began practicing in 1970, 

and suggest that today’s agency practice has moved too far in the 

direction of exclusively notice and comment rulemaking. Specifically, I recount my experience in various rulemaking cases where 

limited cross-examination of agency projections were key scientific 

and technical studies proved extremely helpful in facilitating effective judicial review and improving the agency’s work product. 

My experience suggests that it would be wise to make carefully 

tailored amendments to the Administrative Procedure Act, which 

would permit slightly more formal proceedings in only major rules 

currently reviewed by the OIRA office. I am not suggesting formal 

rulemaking in every case, or that the procedures in 556 would 

apply to all of these rulemakings. I am suggesting something more 

limited, as you will see from my testimony. And I am suggesting 

also that this process that I am suggesting would improve not just 

for judicial review but the OIRA process at OMB whereby the executive branch reviews agency rules before they take effect. 

Now, I began by reminding us all that the Administrative Procedure Act was enacted in 1946 in response to perceived excesses by 

New Deal agencies. In reflecting that understanding, Justice 

Frankfurter, an administrative law professor at Harvard, concluded in Universal Camera that quote, Courts must now assume 

more responsibility for the reasonableness and fairness of agencies’ 

30 

decisions and, quote, that they not abdicate the conventional judicial function. 

Now at that time, the normal way that agencies proceeded was 

by adjudication. Rulemaking was a novel idea contained in the Administrative Procedure Act. But rulemaking became more popular 

in the 1950’s as sort of a summary judgment device whereby issues 

that were recurring in licensing proceedings or in adjudication 

could be dealt with once and for all by rulemaking. And then rulemaking blossomed in 1970 with the enactment of various health 

safety and environmental statutes. 

Now at that time, many of the leading jurists and administrative 

law experts envisioned a limited role for oral hearings and crossexamination, again on the same things I am talking about, the 

issue of central importance, the key scientific and technical evidence underlying the agency’s decision. And that was especially 

true, as it is today, because of the enormous impact that some of 

these major rules can have on our economy. 

The likelihood of that occurring was sort of snuffed out in the 

1970’s by two Supreme Court decisions, the Florida East Coast 

Railroad case and the Vermont Yankee case. And where does that 

leave us with judicial review; because the process is now gone and 

the ability to have even the limited kind of suggestion that I am 

making has gone. 

So what do we have? We have a process-oriented judicial review 

with massive records, records that I can tell you as a litigator, most 

of which is irrelevant. It always boils down to a few key pieces of 

evidence. And on those key pieces of evidence, the ability to get at 

the heart of them and to find out what the assumptions are and 

how viable those assumptions are, the projections of the agency, 

these are the heart and soul of judicial review. And yet without 

cross-examination, it doesn’t work very well. 

Now I have given you, in my testimony, examples of three cases 

that are, in my own experience as a litigator—the International 

Harvester Case, the so-called benzene case, and a case called Corrosion Through Fitting, where for various reasons that are contained in my testimony, some kind of cross-examination was permitted. And I think those cases illustrate how a limited function 

for cross-examination would facilitate judicial review and improve 

the work product. 

I also suggest—my last sentence—I suggest in the third part of 

my testimony how this could be done in a limited, carefully tailored 

way in amending section 553 of the APA. Thank you. 

Mr. GOWDY. Thank you Mr. Warren. 

[The prepared statement of Mr. Warren follows:] 

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APPENDIX 


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Mr. GOWDY. Next we are pleased to welcome Mr. Noel Francisco. 

I hope I pronounced it somewhat close to being correct. Mr. Francisco leads the government regulation practice at Jones Day. Prior 

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attorney general in the Department of Justice Office of Legal Counsel and as associate counsel to the President of the United States. 

Mr. Francisco earned a B.A. In economics from the University of 

Chicago. He also earned his J.D. From the University of Chicago 

with high honors. He clerked for Judge Luttig on the United States 

Court of Appeals for the fourth circuit in Richmond and for Justice 

Scalia on the Supreme Court of the United States. At Jones Day, 

Mr. Francisco regularly interacts with administrative agencies at 

every step of the regulatory process. He knows from personal experience how the Administrative Procedure Act works and how it 

does not work. And we look forward to his insights. With that, welcome, Mr. Francisco. 

TESTIMONY OF NOEL J. FRANCISCO, ESQ., JONES DAY LLP 

Mr. FRANCISCO. Thank you, Mr. Chairman and Members of the 

Subcommittee. It is an honor to appear before you today to discuss 

the important issue of judicial review of agency action. 

In the modern administrative state, it is necessary for courts to 

defer to agencies’ interpretation and implementation of laws passed 

by Congress. In complex regulatory regimes, Congress simply cannot anticipate every problem that may arise, nor can courts be expected to fill the policy gaps. That is the role of the agencies. 

Rigorous judicial oversight, however, is also required, for if judicial deference goes too far, we risk undermining the basic structure 

of our system of government. Take, for example, a common feature 

of the modern administrative state. At the front end, Congress 

passes a broad and open-ended law. Agencies then fill in the gaps 

through implementing regulations. This is no ministerial function. 

In these implementing regulations, the agencies are not just interpreting a broad law. In addition, they are making fundamental policy choices similar to those made by this body every day. Then at 

the back end, courts largely defer to the agencies’ interpretation 

and implementation of broad law. As a result, we see the agencies 

not only executing the law, which is their primary function, but 

also both making and interpreting the law through their implementing regulations. 

The primary check on this agency discretion is judicial review. It 

is the judiciary’s job to ensure that the agency’s policy choices ultimately reflect those made by this body, the Congress, in the original legislation. The point here, of course, is not judicial power. 

Rather, the court’s role in this process is to protect Congress’ power 

by ensuring that at the end of the day, the agency’s policy choices 

reflect Congress’ policy choices. And if courts accord agencies too 

much discretion, then we remove this fundamental check and the 

result is an undue concentration in the executive branch of all 

three powers of our national government. 

This ultimately is the dilemma of modern administrative law: 

how to balance agency discretion against judicial oversight. And 

striking the right balance is vital to preserving the separation of 

powers on which our government was founded. 

In light of this, there are three basic areas where in my view we 

should consider whether legal doctrine is tilted too far in favor of 

agency discretion and away from judicial review. 

173 

The first is the one that was just touched upon by my friend and 

former law professor, Ed Warren, and that is the issue of formal 

versus informal rulemaking. I agree that we should carefully ask 

ourselves whether or not we have struck the right balance here. 

It is true, it is true that in many contexts, it is important for 

agencies to act expeditiously. And that is primarily the benefit of 

the notice and comment rulemaking process. But I would submit 

that in the vast majority of contexts, it is much more important to 

get the right answer than it is to get the quick answer. And in 

light of that, it is eminently reasonable to ask whether we have 

struck the right balance by making the more formal procedures as 

embodied in formal rulemaking a virtual dinosaur in the area of 

administrative law. 

The other area where I think that reconsideration of whether we 

have struck the right balance is important is in the area of judicial 

deference to the agencies’ interpretation and implementation of 

laws. Here, too, the law is tilted strongly in favor of agency discretion and against judicial oversight. To give more deference where 

courts defer to the agency’s views, to the extent those views are 

persuasive, makes a lot of sense. So does Chevron deference, if not 

taken too far. Agencies, after all, have technical expertise that 

courts do not. And courts by and large should defer to that expertise. 

In addition to those decisions, however, the courts have adopted 

various other and even more deferential doctrines as embodied by 

cases like as Power and Baltimore Gas and Electric. This development raises an important and fundamental policy question. Have 

these doctrines tipped the balance too far in favor of agency discretion and away from judicial review? If so, then recalibration of that 

balance is eminently warranted. 

There are many ways to do that. The bottom line, however, is 

that in this context, judicial review is not about judicial power. It 

is about ensuring that the agencies are adhering to Congress’ policy choices so that Congress is not effectively cut out of the policymaking process. 

The last area—and I will just defer to my written remarks on 

this, on which I think it warrants reconsideration of the right balance is in the area of specific statutes aimed at improving the regulatory process, primarily the Information Quality Act and the Regulatory Flexibility Act. Thank you, Mr. Chairman. 

Mr. GOWDY. Thank you, Mr. Francisco. 

[The prepared statement of Mr. Francisco follows:] 

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Mr. GOWDY. And third, we will have Professor Matthew Stephenson from Harvard Law School. Mr. Stephenson is a professor at 

Harvard where he teaches administrative law, legislation, and regulation, and political economy of public law. His research focuses 

on the application of positive political theory to public law, particuVerDate Aug 31 2005 10:40 Sep 26, 2011 Jkt 000000 PO 00000 Frm 00188 Fmt 6633 Sfmt 6601 H:\WORK\COURTS\053111\66612.000 HJUD1 PsN: 66612

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larly in the areas of administrative procedure, judicial institutions, 

and separation of powers. 

Prior to joining the Harvard Law School faculty, Professor Stephenson clerked for senior Judge Steven Williams on the U.S. 

Court of Appeals for the District of Columbia circuit and for Justice 

Anthony Kennedy on the Supreme Court of the United States. He 

received his Ph.D. In political science and his J.D. from Harvard 

in 2003 and his B.A. From Harvard in 1997. We are glad to have 

you, Professor Stephenson, and we will recognize you for your 5 

minutes. 

TESTIMONY OF MATTHEW C. STEPHENSON, PROFESSOR, 

HARVARD LAW SCHOOL 

Mr. STEPHENSON. Thank you Chairman Gowdy, Ranking Member Quigley, Members of the Subcommittee. I appreciate your inviting me here today to speak on these very important issues of administrative process. 

These procedural issues may seem arcane and technical, but as 

Members of the Subcommittee are well aware, they are critically 

important for the welfare of the American people. I think it is important to keep in mind when we have these discussions about regulatory process, that there is an important distinction between our 

views about desirable regulatory policy and desirable regulatory 

process. The same administrative procedures that might regulate 

and slow down the adoption by agencies of rules and regulations 

that impose new mandates on the private sector would likewise 

regulate and perhaps slow down deregulatory initiatives or the replacement of command-and-control style regulatory schemes with 

more market-based incentive schemes. 

The same practices of judicial review that might empower courts 

to strike down agency regulations that in the judge’s views are not 

supported by sound science might also empower Federal judges to 

strike down agency efforts to deregulate or alter regulatory burdens and, in some circumstances, even leave Federal courts to require agencies to adopt new regulations. 

I think in light of this useful example to keep in mind is President Ronald Reagan’s efforts shortly after he was elected to use the 

notice and comment rulemaking process to implement his vision of 

regulatory policy. At the time, it was progressive critics who 

charged that there was sometimes too little process and not enough 

judicial scrutiny. 

The more general point—and this is a point on which I believe 

my fellow witnesses would agree, even if we might disagree on 

some of the particulars—-is that we should be willing to advocate 

the same procedural rules today that we would have advocated in 

1980. 

In light of that, let me now turn to some of the more specific proposals that Members of the Committee have raised as worth exploring. One is the suggestion that more administrative 

rulemakings be governed by the APA’s formal rulemaking procedures rather than its so-called informal or notice and comment 

rulemaking procedures. In my view, such a move would be likely 

both unnecessary and unwise; unnecessary, because the so-called 

informal rulemaking process is, in fact, heavily proceduralized. It 

186 

is true that it does not typically involve adversarial oral cross-examination, but there is extensive opportunity for parties to provide 

their views to criticize agency science, to criticize agency policy 

choices, and to compel agencies to respond to all reasonable such 

comments, criticisms, and proposed alternatives, to the point where 

most people would refer to this process—this notice and comment 

process as somewhat akin to a paper hearing. 

What formal rulemaking would add principally—although there 

are other things as well—would be adversarial cross-examination. 

There is to my knowledge very little evidence that adversarial 

cross-examination is especially well-suited for the sorts of issues 

that typically come up in major rulemakings, whatever its benefits 

in other contexts. And what limited systematic study of the issue 

that there is seems to corroborate this and suggest that the principal result of more formalized procedures, as Ranking Member 

Quigley mentioned in his opening remarks, is greater delay; delay 

that, as I mentioned earlier it is important to keep in mind, would 

not only delay or deter the imposition of new regulatory burdens 

but would also delay or deter the relaxation or modification of regulatory burdens. In other words, the principal effect of requiring formal rulemaking would be to freeze the regulatory status quo— 

whatever that happens to be at the moment—in place or at least 

make it very difficult and slow to change. 

With respect to judicial review, my comments would be somewhat similar. Here my views are less strongly held. I think there 

are important questions about judicial review as currently practiced, but it is important to recognize there does exist substantial 

judicial oversight of agency rulemaking right now. Imposing a more 

or heightened standard of judicial review would have the effect perhaps of shifting more power over regulatory policymaking from 

agency policy experts to agency lawyers, and more power over regulatory policymaking from administrative agencies and perhaps also 

this body to the Federal courts. 

Now, I certainly wouldn’t advocate eliminating such meaningful 

judicial review as some of my colleagues in the academy might. But 

I do think the Committee should take into account those potential 

drawbacks before mandating a heightened standard of review this 

time. Thank you very much. 

Mr. GOWDY. Thank you, Professor. 

[The prepared statement of Mr. Stephenson follows:] 

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Mr. GOWDY. At this point I would recognize the gentleman from 

Illinois for his 5 minutes of questioning. 

Mr. QUIGLEY. Thank you, Mr. Chairman. 

Professor Stephenson, I think it was in your written statement, 

or it might have been in your prepared statement, you indicate 

that there is, quote, disturbing evidence that judges’ personal policy preferences play a greater role than they should in evaluating 

agency regulations. The first part of the question would be: What 

does that evidence consist of, and can you elaborate? 

Mr. STEPHENSON. Yes. Thank you very much, Mr. Quigley. 

The evidence to which I refer, which is—the relevant citations 

would appear in the portion of the book to which I cite. But there 

has been some evidence to look systematically at whether the composition of the typically three-judge judicial panels that evaluate 

major agency rulemakings affect the outcome. And when I say the 

‘‘composition,’’ I mean simply crude measures of whether the judges 

on that panel were appointed by Republican Presidents or Democratic Presidents. 

If Republican appointees and Democratic appointees resolve administrative law cases in more or less the same way, then if you 

look at a sufficiently large number of cases, such that random errors wash out, the rates of affirming or reversing or remanding 

agency regulations ought to look about the same regardless of 

panel composition. 

However, there is evidence that they do not look the same; that 

panels, for example, composed of three Republican appointees seem 

to decide cases in a manner systematically differently than three 

Democratic appointees, or even that panels composed of all judges 

appointed by a President of the same party behave differently from 

panels that have at least one member appointed by a President of 

a different party. 

Now, we need to be careful not to exaggerate the significance of 

this evidence. Sometimes these academic studies are cited from the 

proposition that judges are purely political or ideological. The evidence doesn’t support that conclusion. It does, however, suggest 

that like human beings, judges’ strongly held views about policy 

might influence their judgments about, for example, whether an 

agency has offered enough evidence in support of a potentially debatable conclusion. Now that would be the nature of the evidence. 

It is certainly by no means conclusive. But there have now been 

numerous studies searching for these so-called ideological or panel 

effects, and although they are not uniform, they do seem to keep 

coming up over and over again in the data that exists. 

Mr. QUIGLEY. Mr. Francisco you seem to have perked up when 

I asked that question. I just want to get your reaction, Mr. Warren, 

as well. 

Mr. FRANCISCO. Well, Congressman Quigley, I make my living 

appearing before judges. I think every judge is eminently fair before I make my case. After I make my case, I think half of them 

are fair. 

That being said, I think to the extent that there is some kind of 

tilt based on a judge’s political preferences, it may reflect the fact 

that the standards that govern their decision making are simply 

too ambiguous. Take standard Chevron deference, for example. If 

209 

judges are to uphold an agency regulation to the extent it reflects 

a, quote, permissible reading of the statute, that is a quite vague 

and open-ended statute. And when you invite judges to engage in 

that kind of open-ended and discretionary review and you give that 

much leeway to the agencies, you invite a certain amount of other 

issues creeping into the judicial decision-making process. 

Mr. QUIGLEY. Mr. Warren? 

Mr. WARREN. Yeah. I think it is an interesting question. But I 

think it is more a product of how messed up the agency process is 

today in judicial review. As a lawyer, I want a judge who will probe 

and go in-depth into the record, whether he is a Democrat or a Republican. I really don’t care. I just want to get to the heart of the 

matter. 

Let me try to explain to all of you who are lawyers exactly what 

the administrative process today is like. To think of it as simple 

and straightforward and quick is just not true. It takes years and 

years and years, comments by the millions of pages are filed. Agencies have an obligation under this process-oriented judicial review 

to give an answer to every case. This takes man-years of work by 

agencies to assemble a record which can withstand judicial review. 

And then judicial review takes place under this very amorphous 

process that has very little to do with the heart of the matter, what 

is really the critical evidence. 

What I am suggesting is a modification which would focus in on 

what is really important, and that would enhance I think judicial 

review and enhance the ability of the executive branch to focus in 

on what is really important. 

I think the problem with judicial review is that it is insufficiently 

substantive. It is not just the question of Chevron deference but it 

is the question of understanding what it is that is at issue. 

Let me give you another comparison. And that is, we have another form of regulation. It is called the tort system. It is civil litigation. In the tort system, the Supreme Court has now gone to 

great lengths to make sure that the evidence on which toxic torts 

or other major class-action litigation, for example, is conducted at 

the highest levels of scientific and technical expertise. That is one 

form of regulation. It seems crazy not to apply the same kinds of 

rigor to the evidence which is being utilized by the agencies to impose enormous costs on society. 

Mr. QUIGLEY. Thank you, Mr. Chairman. My time is up. 

Mr. GOWDY. I thank the gentleman from Illinois. 

Mr. Warren, perhaps I was asleep during law school when the 

peanut butter case was taught, because my two colleagues to the 

left are both much more familiar with it than I. The peanut butter 

case, are you familiar with it? And is there another version? 

Mr. WARREN. Yeah. I am aware of the peanut butter case. This 

has to do with aflatoxin, which is a carcinogen which naturally occurs in peanuts and in some other crops. Now I am not suggesting—and I agree with those who suggest that this kind of long, 

drawn-out process is inefficient and inappropriate. We have had 

formal proceedings, for example, under the old Federal Power Commission Act that went on for months and months and years and 

years. And I think that is not right and not what we want to do. 

210 

I have suggested in my testimony that what we should be focusing on is not all rules. Most rules, I think, are going to be governed 

by section 553 of the APA. Instead, let’s talk about the major rules, 

the major rules that pass that $100 million hurdle that lead to 

scrutiny by the executive branch under the OIRA process. Then I 

think with respect to those rules, we should be asking the agency 

to say what is it really centrally that you are relying on. And I give 

examples in my testimony of three cases that I have litigated 

where it is pretty easy to see what is the central evidence. 

And that is what we should be focusing our attention on. That 

is the evidence that parties ought to be able—and I am not just 

talking about regulated parties, I am talking about public interest 

groups and environmental groups who have an equal interest in 

seeing—and this goes to the question of deregulation. They have an 

equal interest in seeing that the public interest is served. And so 

they have the same opportunity to seek to cross-examine, and that 

process has to be governed by some hearing officer who says yes 

or no and gives the reasons for saying yes or no to cross-examination, so that we don’t have the excesses that occurred in the 1950’s 

and into the 1960’s which gave rise to Florida East Coast Railroad 

and Vermont Yankee. 

Mr. GOWDY. Professor Stephenson, where in the hierarchy of constitutional rights would you list the right to confront? 

Mr. STEPHENSON. The right to confront in the context of a criminal trial? 

Mr. GOWDY. Just the right to confront. 

Mr. STEPHENSON. I am not sure how I would answer the question 

where in the hierarchy I would list it. Clearly, in a criminal case, 

the defendant has a right to confront the witnesses against him. 

And that is clearly an constitutional right that I would view as absolutely important. 

Mr. GOWDY. And why is the right to confront so important? 

Mr. STEPHENSON. Not being a constitutional historian, especially 

not one who focuses on the history of criminal procedure, I would 

be reluctant to give an off-the-cuff—— 

Mr. GOWDY. Oh, come on. You are a law professor. You know everything. 

Mr. STEPHENSON. Alas, no. 

Mr. GOWDY. Do you agree with Irving Younger that the single 

best way to elicit the truth is through the power of cross-examination? 

Mr. STEPHENSON. No, I don’t think I agree with that. 

Mr. GOWDY. Would you agree that we use it for things as simple 

as determining whether or not the light was red or green, and 

things as complex as whether or not there is a DNA match? 

Mr. STEPHENSON. We certainly do use it for those purposes, absolutely. 

Mr. GOWDY. And it is almost without limitation in the criminal 

context because it is so good at getting out the truth. We even 

make victims of domestic violence or child abuse come and testify 

in front of their punitive or alleged attacker because we believe in 

the power of confrontation, right? 

Mr. STEPHENSON. Yes. But with an important qualification, if I 

may. Many of the people who have engaged seriously these issues 

211 

that you are raising about the value of cross-examination have 

drawn a distinction between different contexts and have emphasized the importance of the procedures that we use for getting at 

the truth being appropriately tailored to the context. So there are 

certain contexts where cross-examination, at least historically, has 

been thought to be extremely valuable for the reasons that you suggest, although I am not aware of systematic study that would corroborate that intuition. But in other contexts, we don’t rely on that 

kind of adversarial cross-examination. 

For example, when scientists are engaged not in necessarily 

science for regulation, but the process of academic science, they 

don’t necessarily use oral adversarial cross-examination to get to 

the root of those scientific issues. That doesn’t mean that they don’t 

debate, often rigorously or passionately. But they don’t necessarily 

use the form and trappings of a civil or criminal trial. Now, whether that is right or not, I am not certain. 

But I guess what I would say is that whenever we need to find 

the right method to lead us to the truth, we need to be sensitive 

to the context. There are not very many systematic studies of the 

agency rulemaking process about what methods are best associated 

with that context. 

The one with which I am most familiar was a study that my 

former boss, then-professor, now-Judge Steven Williams conducted 

of hybrid rulemaking in the 1970’s. It didn’t have a lot of data. He 

looked at a handful of cases. But his analysis led him to conclude 

that it wasn’t very well-suited for that process. But I can’t say that 

I know for sure. 

Mr. GOWDY. Mr. Francisco, I wanted to ask you your thoughts 

on the power of cross-examination as a tool by which to get at the 

truth. But the red light prevents me from doing it. Hopefully you 

will have an opportunity to weigh in on that if you choose. 

And I would recognize the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Well I would ask unanimous consent the Chairman have an additional minute to pose that question—it is an important one—to Mr. Francisco. 

Mr. GOWDY. I thank you, Mr. Conyers and Mr. Quigley. Mr. 

Francisco, your thoughts on the power of cross-examination as the 

best means by which to elucidate the truth? 

Mr. FRANCISCO. Thank you, Mr. Chairman. I think it is an extraordinarily powerful tool. As Professor Stephenson explained, 

often in the administrative process you do have extensive records. 

But that kind of extensive paper record provides a very useful way 

for masking the flaws often underlying the science that underpin 

regulations. It is very easy for the stakeholders to submit extensive 

comments and suggest enormous numbers of flaws in the regulatory process and then have an agency just, almost as it is handing down a ruling from on high, give it the back of the hand and 

say, We have considered it, we disagree, here is the rule. 

It is a lot different when you have got somebody sitting on the 

stand. And when somebody sitting on the stand knows that they 

are going to have to answer direct questions about the quality of 

their analysis, I can virtually guarantee you that the quality of 

that analysis on average is going to rise dramatically. 

212 

You need only compare the type of expert report and expert witnesses that you see in high stakes litigation to the types of regulatory impact analyses and cost-benefit analyses that we see that 

the agencies issue in conjunction with regulations. And the difference is night and day. So I think that cross-examination is very 

important in this context. 

Mr. GOWDY. Thank you, Mr. Francisco. At this point I would recognize the gentleman from Michigan, Mr. Conyers. 

Mr. CONYERS. Thank you, Chairman Gowdy. 

Mr. Francisco, you have represented tobacco companies; isn’t 

that correct? 

Mr. FRANCISCO. Yes, Your Honor. Yes, Congressman. 

Mr. CONYERS. And you have had an opportunity to challenge the 

rulemaking process yourself as a part of your job as counsel? 

Mr. FRANCISCO. Yes, sir. One of my jobs is to advise companies 

in the rulemaking process. 

Mr. CONYERS. So this is what Chairman Gowdy meant about ‘‘job 

creation.’’ This is a great way to create jobs for lawyers, because 

I know Professor and Attorney Warren has been to court more than 

once on the rulemaking process because I am looking at the cases. 

Mr. WARREN. Yes. 

Mr. CONYERS. You said ‘‘yes.’’ Okay. It is kind of curious to me 

that the two witnesses for this event are distinguished lawyers, one 

almost two generations in the practice of law and teaching, maybe 

one of the highest Ranking Members of his law firm. Do you have 

a particular title inside Kirkland? 

Mr. WARREN. No, I really don’t anymore. But you are right; I 

have been around a long time. 

Mr. CONYERS. What was your title? 

Mr. WARREN. Well, at various points in time I was a partner. I 

have been a partner of the firm since 1975. I am now sort of semiretired. 

Mr. CONYERS. Sure. 

Mr. WARREN. So I no longer have that title. 

Mr. CONYERS. Well, what I am trying to demonstrate here is that 

it is sort of curious to me that—we want to make this a more effective and fair way to come up with rules, and yet you are the one 

that said that anyone that says this is a simple, straight-forward, 

and quick way to do it—the way we are doing it—is just not true. 

Now, will you name me one person that ever said that? 

Mr. WARREN. I am not sure I quite understand the question. 

Mr. CONYERS. Well, the question is that you said that—this is 

your quote. 

Mr. WARREN. Right. 

Mr. CONYERS. I have got the stenographer here to help us out. 

Anyone that thinks that this is a simple, straight-forward, and 

quick way to deal with agency regulations, it is just not true, right? 

Mr. WARREN. Yes. 

Mr. CONYERS. Is that correct? 

Mr. WARREN. Yes. 

Mr. CONYERS. Okay. Now, will you tell me one person that ever 

made that allegation? 

Mr. WARREN. Yeah. I think so. I mean—— 

Mr. CONYERS. Name him. 

213 

Mr. WARREN. Well, let me state the point. 

Mr. CONYERS. No. No. Name who it is. 

Mr. WARREN. Well, look at—— 

Mr. CONYERS. Name somebody. 

Mr. WARREN. I am going to. Richard Pierce. And you look at the 

back end—— 

Mr. CONYERS. Richard Pierce said this? 

Mr. WARREN. Yes. Let me read a quote that—— 

Mr. CONYERS. You don’t have to read it. I just want his name. 

Okay. That is enough. 

How many people in your firm, even though you are semi-retired—well, I will tell you, 1,500 people. Maybe it is more by now. 

Mr. WARREN. That is about right. 

Mr. CONYERS. Yeah. And you have offices all over the world? 

Mr. WARREN. That is correct. 

Mr. CONYERS. Right. How many people in your firm? Can I help 

you with that a little bit? 

Mr. FRANCISCO. Yes, sir. 

Mr. CONYERS. Two-and-a-half thousand lawyers working in 

Jones, right? 

Mr. FRANCISCO. I think that is about right. 

Mr. CONYERS. Yeah. And you have offices all over the world. 

Mr. FRANCISCO. Yes, sir. 

Mr. CONYERS. And you are here now telling us that because lawyers should have a chance, as the Chairman said, the right to confront, to cross-examine like they do in child abuse and molestation 

cases, they should have the same right in trying to determine agency rules. Do you agree with that? 

Mr. FRANCISCO. I agree that the—— 

Mr. CONYERS. Do you agree with that? 

Mr. FRANCISCO. I agree that the right to cross-examine witnesses—— 

Mr. CONYERS. Do you agree with that? Do you agree with that? 

Mr. FRANCISCO. Obviously, yes. 

Mr. CONYERS. You said yes? 

Mr. FRANCISCO. The right to cross-examine witnesses—— 

Mr. CONYERS. Do you agree with it? 

Mr. WARREN. I think my testimony suggests that the right to 

confront evidence should be limited to those things that are central 

to the rulemaking, and I give examples of what I think that means, 

and I give examples within my experience where that has worked, 

worked well, and made the agency process more efficient. 

Mr. CONYERS. Thank you. Mr. Chairman, can I have 1 additional 

minute? 

Mr. GOWDY. Without objection. 

Mr. CONYERS. Thank you, sir. Will you name me any agency of— 

creation of rulemaking for any agency that you think that the process that has been suggested by our distinguished Chairman would 

have been superior to the one that was used? 

Mr. WARREN. Can I speak to that? 

Mr. CONYERS. Yes. 

Mr. WARREN. Yes. 

Mr. CONYERS. Name it, then. 

214 

Mr. WARREN. Yes. I would say the Occupational Safety and 

Health Administration, the procedure employed in the benzene 

case which I argued—— 

Mr. CONYERS. The benzene case? 

Mr. WARREN. The benzene case which is contained as an attachment to my testimony. The very fact that I was able to cross-examine, not everybody, not—and just the central scientific evidence enabled Justice Stevens in his opinion, which I invite you to read, to 

deal with the substance of what was at issue in a very thorough 

and thoughtful way. Without cross-examination, without my opportunity—— 

Mr. CONYERS. All right. So what you are saying is that this is 

a great way for lawyers to get into the act. Do you have any cases 

that—do you have one case you can name, not a list of them which 

I normally ask for, name me one case. 

Mr. FRANCISCO. That would? 

Mr. CONYERS. That this method would have been superior to the 

one that is being used now. 

Mr. GOWDY. If you want to answer the question briefly, you can. 

Mr. CONYERS. Well, just one sentence. 

Mr. FRANCISCO. There is not a specific case that—— 

Mr. CONYERS. You don’t have a case. 

Mr. FRANCISCO. In general, I think that it is something that improves the decision-making process, which is why we use it—— 

Mr. CONYERS. I get your drift. Thank you very much, Mr. Chairman. 

Mr. GOWDY. Thank you, Mr. Conyers. 

I want to thank, again, the panel. For someone who had never 

looked at the Administrative Procedures Act until 5 months ago, I 

can’t think of three better people to help on that. And I applaud 

your knowledge, your collegiality, and politeness toward one another and toward us, and thank you for your time and your expertise. It is a treasure to be able to have folks with this kind of acumen come and testify before the various Subcommittees of Congress. 

So, without objection, all Members will have 5 legislative days to 

submit to the Chair additional written questions for the witnesses, 

which we will forward and ask the witnesses to respond to as 

promptly as they can so their answers may be made part of the 

record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

With that, again, I thank the witnesses. The hearing is going to 

be adjourned in just a moment. I would personally like to come 

shake your hands and thank y’all for your testimony at the conclusion. I won’t keep you too long. Hearing is adjourned. 

[Whereupon, at 5:02 p.m., the Subcommittee was adjourned.] 

(215) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

216 

Response to Post-Hearing Questions from Edward W. Warren, P.C., 

Kirkland & Ellis, LLP 


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Response to Post-Hearing Questions from Noel J. Francisco, Esq., Jones Day LLP 


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RESPONSE TO POST-HEARING QUESTIONS FROM MATTHEW C. STEPHENSON, 

PROFESSOR, HARVARD LAW SCHOOL


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Æ 


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