Exclusive Q&A On Administration & Public Law With Paul Cunningham
Posted: 9th February 2015 09:54Q1. To what degree is administrative law adequate for understanding global politics and society?
A good lawyer never expects to anticipate judicial decision making in a national or local jurisdiction before careful study of the court’s social and political context and its internal culture.
Similar but greater care is required in a system of administrative law, and even more is needed if the matter involves multiple jurisdictions or concerns about global politics and society.
Administrative law thus offers an imperfect path to understanding. It both reflects and determines politics and society. And, outside of very specialized venues, the predominate politics and society remain local even as they influence and are influenced by globalization.
Q 2. How does the globalization of international law pose a challenge to administration law?
Globalization of international law can be, depending upon the jurisdiction and the matters at issue, highly disruptive or, at the other extreme, a matter of indifference to a particular administrative law regime.
Administrative law is challenged when the subject matter is important enough to the jurisdiction to require its administrative law regime to conform to the prevailing international law.
Conversely, the globalization of international law is challenged when administrative decision makers perceive that conformity to international law is less important than maintaining the socio-political order the local legal regime was originally designed to protect.
Q 5. Can you talk us through the process of challenging administrative decisions?
The wide socio-political and legal disparities among administrative law regimes limit the utility of generalities. Nonetheless, important steps to be taken before (preferably) and after any administrative decision include the following:
1.) Know the decision-makers, their legal constraints, and the extra-legal factors that might influence their decisions.
2.) Assure that the decision-makers understand fully that the decision you seek is both consistent with their informal, extra-legal decision-making rules and (where possible) required by their formal authority, especially any particular legal rules that could determine the success of any appeal.
Q 6. To what extent are social and environmental issues becoming increasingly important?
Social and environmental issues often dominate regulatory proceedings in highly and less developed economic regimes -- especially proceedings about licensing major developments. “Public interest” issues once primarily concerned competition and other economic impacts. Now project proponents must also be prepared to expend substantial resources to define and mitigate social and environmental impacts.
These challenges face both “hard” projects – such as infrastructure developments that affect the physical environment -- and “soft” ventures -- such as internet taxi and accommodation facilitators -- that could disrupt established commercial and regulatory environments.
Q 7. As a result of globalisation many clients are looking for law firms who can deliver an international service. How have client expectations of lawyers’ abilities and expertise changed over the years?
Depending on circumstances, sophisticated corporate and other institutional clients manifest a range of expectations for domestic and international services. They are uniformly more selective, price-conscious, and confident of their ability to assess the quality of procured legal services. Clients rightly expect outside counsel continually to reassess the value they provide and to integrate their contributions with other outside counsel and the client’s legal staff. Especially in complex, multi-jurisdictional matters, each engaged lawyer must be a pro-active contributor to the client’s effort to secure the most value in the most efficient manner.
Q 8. What do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?
The maxim --“the law is the rules that society will enforce” -- tells us socio-political change makes the outcome of legal decisions harder to discern.
Hence the growing uncertainty about the rules governing economic life. Economic growth – long the goal of those rules in developed countries – is no longer the polestar. Decision makers often see commerce and finance as less about value creation than about zero sum games.
Ideally, clients and lawyers will seek to reinstate value creation, including wise accommodation of social impacts, as both the function of economic life and the chief desideratum of the governing rules.
Paul Cunningham assists business and governmental enterprises to maximize opportunities and minimize risks in changing regulatory environments. To those ends, he has helped clients design and implement legislative, administrative, judicial, negotiating, and public communications strategies in a range of industries, including transportation, energy, telecommunications, insurance, and water.
Prior to helping found Harkins Cunningham LLP, Mr. Cunningham was the managing partner of the Washington office of Pepper Hamilton LLP from 1988 to 1992. Before entering private practice, Mr. Cunningham was staff counsel to the United States Senate Commerce Committee from 1972 to 1976, and from 1976 to 1978, he was special counsel to Consolidated Rail Corporation.