highway did not go, the city would deteriorate. if that town dies, there is a source of revenue, jobs, people going somewhere different and create economic wealth for this country. much larger countries take advantage of every one of their citizens, and we have to do that here in the united states. we need to draw on the talent and potential of each individual to meet our international -- to meet our national needs and compete globally in the economy. . now we are the ones bringing broadband to every corner of the country. >> gentleman, thank you.

>> thank you. [captions copyright national cable satellite corp. 2010] [captioning performed by national captioning institute] >> sunday, an interview about &a." clay on c-span's "q >> and now a supreme court justices stephen breyer and antonin scalia testify about the administrative committee. those injustices worked on at the administrative conference of the united states -- both justices worked at the administrative conference of the united states before serving on at the supreme court. >> the redcoats are here. as i earlier announced, the

redcoats are coming. this hearing will now come to order. i will recognize myself for a short statement. exactly six years ago today, and justices breyer and scalia testified before this subcommittee. we would like to welcome you both back along with our other witnesses. we are charged with making the improvement of agencies and procedures, particularly in regard to fairness in the rulemaking process. this is considered an independent agency and a federal advisory committee. we have other functions by which federal agencies administer programs. over the course of our history, we have issued 200 recommendations, some of which were government-wide, and others of which were agencies-specific.

we encourage less costly alternatives to the legislation. we established a framework to be used for adr. we also serve as a resource for members of congress, congressional committees, the internal revenue service, at the department of transportation and others. we promote cost efficiency by obtaining expert legal advice that would otherwise cost hundreds of thousands of dollars per hour. we say significant funds through some of our recommendation -- saved significant funds through some of our recommendations.

we are facing significant issues now and have a tremendous need for deregulation. we help to promote fairness in the administrative process. it is my hope that we will serve as a launching pad as we begin our second incarnation. i look forward to all you have to say about how congress can help this committee in its work. i would like to note that we are currently authorized through 2011, and i intend to introduce legislation in this congress to ensure that we are reauthorize in a timely fashion. all of this is subject to the whims and caprices of the chair of the committee. i now acknowledges my colleague for his opening remarks. >> well done, mr. chairman. i want to extend a sincere and hearty welcome to justices scalia and breyer.

it is not often that a sitting supreme court justice graces our chamber, let alone two. i could not be happier to hear from both of you and the very distinguished panelists. from its beginnings in the 1960's, the administrative conference of the united states was a constant source of innovation in administrative law and practice. actively sought out the best ideas from the private and public sector to make our government work better. it helped government to be more efficient, more effective and more responsive. starting in the mid-1990s, we lacked the funding to carry out operations. now, things to the bipartisan leadership of the judiciary committee, it has come back to life. we'll look forward to the contributions the conference can make to the administrative reforms in the year to come.

today, we have an opportunity to explore a number of questions. two sets of questions are at the top of my own list. first, what should our policy agenda be as we resume operations? second, what challenges to we confront as we begin anew from scratch, and how can congress help the conference to overcome those fundamental challenges? regarding the first set of questions, i believe the conference priorities should be clear. it has been the better part of a century since the administrative procedure act became law in 1946. since then, the structure of the apa has been maintained, but the size, scope and nature of the regulatory agency has expanded beyond that congress's wildest imagination, to say the least. we must keep pace with the times and make regulatory bureaucracy more transparent, responsive, and of course, more accountable.

our subcommittee engage thiss tacked to the administrative law, process and procedure act for the 21st century. in 2006, up we issued an interim report that identified nearly 75 issues for investigation and possible legislation. these were identified with the hope that the conference could be revised, to help us identify it the best possible reforms. that report was presented to congress with a ready-made charter as it resumes operations. with regard to the second set of questions, the chairman has identified in his written statement a number of operational challenges that the conference confront as it gets off the ground. i hope each of our witnesses today can help us determine if there are legislative remedies with which the congress can help of the conference. we're here to lend our support

in whatever way we can. as i said before, the government that governs best, governs least. what it does govern, it should govern at its best. to help us achieve that goal is the conference's vital mission. i welcome you again here today. thank you, mr. chairman. >> thank you for your comments, statements and remarks. would our distinguished chairman like to make a statement? >> thank you. it is always a privilege when members of the court join us for these discussions. the two that are before us are becoming well-known in terms of the kind of discussions that we

engaged in. now that this conference is up and running, but we've got the chairman, i think it can be looked at with a fresh set of eyes. that is, the role of the conference is different from nearly every other part of the government. under the circumstances that exist, it is very important in terms of what possibilities are in front of it and are open to it. we could not start this examination with two people that have been more intimately

connected with the conference. so, i am always pleased when the judiciary committee and members of the highest court can join us in the way that we are brought together today. we all welcome your appearance and look forward to the discussion ahead. >> thank you. the last member to make a statement is mr. smith. >> thank you. justice scalia, justice breyer, we are truly honored by your presence, and we look forward to your comments today as well. the administrative conference of the united states is an important institution with a tightly focused, historically successful non-partisan body. i am glad that it will once again be able to make it unique

contributions to administrative reform. since the conference last operated in the mid-1990's, a number of things have changed. important supreme court precedents on administrative law have been handed down. we've encountered a period of difficulty ricard they could have foreseen at 14 years ago. -- we hardly could have foreseen 14 years ago. one thing has not changed. the administration remains open, efficient and accountable. that has never been truer than it is today. now more than ever, we need administrative law to ensure that our administrative agencies are responsive and do not kill jobs. commercial and administrative law and the administrative conference of the united states can be on the front lines of that effort. in the last two conferences, -- last two congresses, the

conference and undertook a major project. the 2006 report on the subject identify issues for further investigation and legislation. these include topics ranging from a electronic rulemaking to congressional and presidential review of rules. they also include regulatory analysis. i hope that in this congress and in the next one, that the conference is held and that we will continue to complete our examination of issues and produce needed legislation. i've invited the office of management and budget and the office of regulatory affairs to work with us on these issues as well. these overtures have not been returnedd and that is greatly disappointing, it must not however, delayed our work.

both the committee and the conference can surely help in it reevaluating the role of federal rule making. mr. chairman, i would like to ask you to consent to submit my letters to the office of regulatory affairs to the record. >> without objective. >> the call from the public is clear. the people who bear the weight imposed by federal agencies want things to be transparent and they want to hold federal agencies accountable. after some major reform must serve those interests. thank you, i yield back. i look forward to the justices testimony. >> thank you, we appreciate your statement. i am now pleased to introduce our first panel of witnesses. i want to then call the witnesses for participating in

today's hearing. without objection, your opening statements will be placed into the record. after each witness has presented his or her testimony, committee members will ask questions. we have a very distinguished panel before us. our first witness is associate justice stephen breyer. in 1994 he was a pointed to the supreme court by william jefferson clinton. prior to that appointment, he taught law for quite a few years at harvard. he was a supreme court law clerk, and justice department lawyer, the watergate prosecutor, and a judicial conference liaison. in 1990 he was appointed appellate court judge. my script says by president

carter, that is not right. was in 1980? 1980? court of appeals. excellent. i knew 1990 would have been quite a trick for president carter. justice breyer has written books and articles about administrative law, regulation, and the constitution. thank you for being here. please begin your testimony. >> thank you very much for inviting me. i am sure justice scalia feels the same. he was actually chairman of the administrative conference. i was a member of that. he was an excellent chairman. your new chairman has blows of

experience in administrative law, technical matters, as well as having run a large institutions like william and mary. so it is a good history you have here. i think i can speak for him in this. >> absolutely. >> you know what i'm going to say. what is terribly good, i think, is that you are here and that you're interested in the subject. almost by definition, the subject matter of the administrative conference is somewhat technical, and usually below the radar of those who are elected public officials. in a way, that is why it can be effective, and that is why it is important. the question that bothers me has bothered human beings in democracies before. how do we control of the regulators? the will regulate the regulators? how do we assure that the system

of the administration is efficient, that it is there, that it is effective? those are questions that are just as important today as they were 1000 years ago. and they are just as important today as they were six years ago. what part of this question to this group of the administrative conference of the united states is answered? well, sometimes people get very bad treatment by the agencies of the government, and then they say you as individuals, or maybe they go to their inspector general, or they find someone they can complain to. maybe sometimes the policy is an issue. people think is the wrong policy, or maybe you think that, and then they are back here again, and we are back asking to change legislation. but in between that, there is a whole layer of terribly important decisions to be made. those are administrative agency decisions.

that is how justice and scalia, who taught administrative law for a long time, and i, who also did, made our livings for quite awhile. it was not good just for that reason. it was good and important because it affects millions and millions and millions of americans. so the question that often is too technical or too non- political for it to force itself on to your agenda, but where there is often quite a lot of work to be done, is on the very technical question of improving the procedures within the administrative agencies. different nations have different ways of going about it. different ones have different councils of groups. our way of going about it is called the administrative conference of the united states. that is at the federal level, and it often helps. first, they brought together four groups of people who do not always talk to each other.

those were staff of different agencies, heads of different agencies, outside lawyers and others who are not members of the government but practice before it those agencies, and academics. the academic could actually go and ask these people who of practical things about so that they would get a steady. and then the study would be criticized. and then it would be ending up with the recommendations, maybe on some subject matter such as how do we improved rulemaking. say the words and a lot of people fall asleep by the time you're done. but if you go to foreign countries and say, you know we have a system in the united states which means the public does not vote on every detail, but it also is a way of getting the public involved so the

people in the agencies who may be too insulated can find out what they think and can learn something about their experience, it is called this rulemaking, their ears prick up. they want to know how to do it. they will do studies. how to make the not too long. how do we actually get public involvement without dragging the whole thing out forever? how can we be sure the agency listens, without having to listen to every single individual, because there may be 5 million of them? justice scalia has several instances. i have listed some. i think they're important. he thinks they are imported. so, all we can say is that we are very glad indeed that you're here, because it shows support for the institution, and i think that institution is important for the ordinary american, even if he has never heard its name.

>> thank you. if you would like to talk further, permission is granted. >> i think i will stop because i have made my point. >> thank you, you certainly have. will introduce antonin scalia. he was nominated to the supreme court by president ronald reagan in 1986. prior to that appointment he was in private practice in cleveland, ohio, and served as professor of law at the university of virginia, georgetown and stanford. justice scalia served as general counsel to the office of telecommunications policy, and as assistant attorney general to the office of legal counsel. was a judge and the u.s. court of appeals in the district of columbia circuit in 1982. thank you for being here. please begin your testimony. >> thank you.

i am very glad to be here. as you noted, justice breyer and i were here six years ago to the day. to tell you the truth, i was at best guardedly optimistic that on that occasion the committee would succeed in reinvigorating or reauthorize thing or refunding of the administrative conference. as i told you then, i thought it was a good idea. i am just delighted to see that it has come to fruition. i am probably happier than most people at the reemergence of the administrative conference, because i had three offices in the executive branch before i went back to teaching. of those three, two of the agencies had been abolished. i had begun to feel i was

something of a governmental typhoid mary. i was afraid the justice department would be next, because that was my third job. so, i am delighted to see the conference back. i think it was one of the best bargains, results for the buck, that the government had during the years what it was in existence. it is impossible to tell you or to get you to appreciate how expert the private lawyers were who donated their time to considering the studies done by the consultants for the conference. all of it was gradison, of course. -- was gratis, of course. the other members of the

conference were academics and government officials. i have in my prepared testimony described it to use some of the accomplishments of the conference. i am sure there is a lot more work to be done. i share with you in the hope that the new conference will improve the administrative process for all of us. i could not be more pleased that -- after the selection of paul vercail to be one of my successors. he was one of the consultants to the old conference. he did one of the studies that resulted in recommendations by the conference. i will just make one other comment, and then do what i really came here for, which is to answer whatever questions you might have. justice breyer mentioned, and i

think he is quite correct, that ordinarily these matters of the administrative procedure are too technical to attract anybody's attention, and they tend to be under the radar. to tell you the truth, i am not sure that is all bad. one of the things i worried about at the conference was the danger of its being politicized, of exports -- of its studies being directed to helping business or not helping business, or that one interest group or another would come to dominate the conference assembly or the recommendations that were presented to the assembly. i think that did not happen during most of its previous existence, and i hope that that will continue. this is technical stuff.

there is a good, fair way to do it. it should not be done in such a way as to push the substantive results in one direction or another. that is all i have by way of introductory remarks. thank you. >> you are welcome. we appreciate your testimony and for you being here. we will now begin the questioning. i will remind my colleagues that we are guided by the code of conduct of the department of justice. we cannot comment on any pending actions. we should strike those from the subject matter of our hearing. the judiciary is encouraged to participate in the future hearings, no questions will be entertained that relate to any particular cases or tenants. >> i would not answer any way,

mr. chairman. >> i will begin with the first volley myself. justice breyer, you refer to practices that other countries used to regulate the regulators. are there lessons you believe we might take from some of these international examples? >> it is interesting. one of the things i think the judicial system and may be the administrative system could think about, sometimes, when there are highly technical matters, of which there are more and more, scientific matters, for example, does this device have a certain amount of polluting qualities or danger, etc., it is often important to get to the science.

there are lists in european companies -- in european countries where scientific list are made available to justices. i suspect that probably some agencies are perfectly able to do that, and other agencies are not. i am six years at least out of date on this, but one of the things i look forward to in the administrative conference is when you get different groups of staff and agency heads and private lawyers who know something about what several agencies say in that respect, they start talking about it and they do studies. some will say, we could not get the right expert on this. others will say, we could. what is the difference, and how did you get them? then you look and the light is dawning, and he is learning something from somebody else. that may not be quite the right topic, but a lot of these things

are international, and what you are suggesting puts into my mind that in today's world, it is not such a bad idea to have someone from the european union, or to have someone from one of these other countries and asked, how're you doing this? you, who have the same kinds of problems? what are your procedures? there are some things internationally that i would be interested in finding out if the administrative conference can look into it. that is what your question triggers in my mind when you ask it. >> are you there issues that you hope so we will prioritize this year? >> that is up to them. i think an age-old question, and i know you are working on this. there is something now called quasi--final rules. does that ring any bells? an interim final rule where

there is less procedure and management. one of the things they're going to go into is how does that work. how does the agency -- people and agencies, in my experience, and i am sure it holds true, they may be given a job like setting a consumer-oriented labeling rule for tires. they do not know what the right rule is. they have tire companies who will tell them, our tire is better because it goes faster. somebody else will say, no, it is the curves that matter. no, it is the grain. so they get lots of conflicting advice. in those circumstances, there is likely to be no absolute answer. there is likely to be a wave of different factors. they will want to get some people in who are not just the staff working on it, no. just

the interest groups that are talking to agencies. how? when? under what circumstances? how do you prevent this process from going on for ever? how can we do better in getting to the right role? i am sure those problems are going to be doubled. we have not met for six years. so, from my outside position on this, and just seeing cases better failures, because that is what comes to us in court, somebody is saying it's a failure, i would say that that is a huge area which they will, i suspect, one to go into. then i go back to your first question and say, let's see what they're doing with this in the eu and in other countries. baby we will all learn something. that is the bottom up -- maybe we will all learn something. that is the bottom line. can we all learn something? quite often, you do. >> thank you, sir. justice scalia, your former

chairman. now have another successor. as he begins his chairmanship, would you be kind enough to offer him some suggestions or recommendations on how we should proceed? >> do good and avoid evil. [laughter] that is the only thing for sure. well, of course, the first thing that the chairman is going to have to do is to identify talented workers. that is by and large academics who are interested in the field of administrative law and can go out and do the legwork that is necessary to any serious study of administrative procedures. fortunately, he is in academia, as most of the chairman of the conference have in the past been and i think you will be able to identify them readily enough.

as to particular subjects, that is frankly the hardest job of the chairman. what is the study that really needs doing? i agree with justice breyer that one of the areas focused on, that is always focused on, is role making, especially since the courts manner of reviewing rulemaking has a seemingly changed in recent years. i am not sanguine as justice breyer is that we are going to learn much from foreign countries. i have no antagonism toward studying the best around the world, but i used to teach comparative law. frankly, i do not think administrative law is an area where we have much to learn as opposed to teach, because i think we probably have, and you would agree, would you not, justice breyer, the most open

and efficient system of administrative law in the world? i do not know any country that -- many of them do not have a basic rule making system of the sort that we do. other device for the chairman. -- advice for the chairman. no, i think that is about it. select good people, and good members of the conference, of course. it is up to the chairman to appoint the layman -- lay members of the conference. that, again, requires a good deal of judgment. i am sure the chairman knows where the good ones are. >> thank you. as you might have noticed, our lighting system is not without the ability to fail. i know my time is up. i recognize the other members of

the committee. >> thank you. and again, and thank you to both of you. i want to certainly defer to the restraints that you have, so if i get caught sideways, just ignore me. in the subcommittee's 21st century progress report, we identified several issues for review. i would ask you, what do you think are the top challenges of the judiciary confronts in providing effective judicial review of agency action? >> currently, and there are some articles that will substantiate this, currently the larger problem is to know when it is that they should, and when it is that they should not, deferred to the judgment of the agency.

it is really -- the answer to that question is quite vague, and maybe that is our fault, but that is the reality. that is the biggest problem that the lower federal courts face. for that matter, i am not sure that i know the answer either. >> justice breyer? >> it could be a problem for you. i think it is a very big problem. it sounds technical, but look. we live today in a world where 300 million americans want a say in what happens. and this is the difficulty. the same difficulty for everyone. it is called time. it is called, time is limited, we have a lot to do, and a lot of these decisions require some degree of expertise. people know what they want. they want a cleaner environment or the wind -- or they want better health care, whatever

those things are. you then legislate at a pretty general level. you have to decide, to what extent you want the agency to write the details. if you give them too much power, well then you have taken power away from the ordinary american. but if you give them too little power, they will not be able to achieve this general objectives. we do not tell the army would help to take. ultimately, you are trying to make that decision, but you do not focus on it when you write the bill. we have to interpret these statutes on issues that are inevitably important to you, but you have not told us. that, i think, as justice scalia said, is a very difficult problem, because it comes down to the question of how much we interfere with the agency. >> mr. chairman, i do not know

about trying to coalesce many different voices. that sounds like something that your conference might be more challenge with then members of the court. justice scalia, could you help us identify some of the promising a legislative actions in this area. is that something that they might focus on our have any thoughts on? >> that is one of the authorized functions of the agency is to make recommendations and not just to the agency, to the president and to the courts, but to the congress. some problems in administrative process could not be fixed except with the cooperation of congress. perhaps the most significant change made by the old administrative conference was eliminating the doctrine of sovereign immunity in review of administrative actions. the justice department used to have candidates.

give them the sovereign immunity brave. they would just polished off the shelf. with the help of congress, the statue was amended to make it very clear that sovereign immunity does not apply to challenges to administrative action where they are not seeking any damages but are just seeking to get the agency to get it right. another area that occurs to me -- well, i do not get sideways. what i would be interested in -- in some statutes congress requires the agency to act by rulemaking. it says the agency shall issue rules on this or that. in other areas, but congress does not require the agency to act by rules, but authorizes the agency to act by rules.

in yet other areas, congress and says nothing about it. the question is, does the agency have inherent rulemaking power or not? some -- my -- the courts have held that an agency where there is power to act by rule or adjudication does not have to act by rules. it can just have case by case hearings and make its lot through those case by case hearings, just the way the courts do. we do not have rulemaking, but we, in effect, make law by case by case. now, people have often commented that there are some areas where that case by case process is not good. maybe the agency ought to be required to act by rules. is there was one area where i would look into, as to whether congress should take some

action, it might be in that field. >> my time is up, but can i tossed the last thing out. i want to see if you have any follow-up on the justice breyer and convert -- justice breyer's comments on how congress draws statutes? do you think there is anything congress could do to provide some clarity in our statutes? >> i am much to diplomatic congressmen, to be drawn into that question. >> it sounds like you may know the difference between a judge and a legislator as well. that's great. thank you. >> we now recognize the distinguished chairman of the full committee, the dean of the judiciary committee and my leader, john conyers. >> thank you. what i think we have here is some amazing agreement over the

importance of this conference, a welcome to the new chair, and i think that we are going to have to have a circumstance in which the conference starts acting for us to draw conclusions about what we think about it. we are all in agreement about its undervalued importance. we think it is on the right track. business stimulated. -- it is 3-stimulated. -- re-stimulated. from that point on, i think we will have to see what they actually do before we begin to

volunteer recommendations in terms of process or even substance. so, i think this gets us off to a good start. rulemaking is extremely complicated, and for the congress to being -- to be relieved of that tax is probably a very good thing. this leads to a consistency in -- this leads to a consistency and makes it much easier and for us to the substantive legislation. now, is there some areas you might think that we might be

looking at before the new chairmen really gets in the saddle? >> i would give him a chance to gain his footing. rather than push him in one direction or another. he is likely to take a suggestion by congress as a command. if i were you, he is a good man, and i would let him survey the territory and maybe come to you with a suggestion, and then you can take the ones that seem the best. >> after all, mr. chairman, we can have them come before the committee from time to time.

now, there is a subject that i am anxious to raise with you. every member of the staff has recommended strongly that i do not raise it, that it fails the minimum warning, the admonitions of the subcommittee chairs. >> mr. chairman, we are both friends of elena kagan, and i do not think we're willing to go beyond that. [laughter] >> i am sure you would be relieved to know that that is not what i had in mind. i think depth -- i think that these kinds of discussions between the two parts of the federal system should be

encouraged. in a, after all, there are -- you know, after all, there are two levels to every subject matter. one is the substantive part, the untitled matter that we are considering. but there is another psychological area 3, and that area is -- psychological area, and that area is the personal feelings about human beings that we all have toward one another. what that means to me is that,

if you really understand, if you really have a disagreement of the substance that is not personal and does not go beyond the agreements or the differences that exist, we are all in a much better position to come to a probably more reasonable conclusion when we are operating on that level. all too frequently in the only system i know, a democracy like this, it is so easy to move from

the substantive to this objective. once that happens, again, just from my experience, that affects the reasoning processes about the substantive. it is for that reason that i applaud the chairman and his ranking colleagues for doing what we are doing, and hope that wherever it is appropriate, that it be engaged in more. i have come to appreciate, at the opening of every one of the , theial conference's

chairman of both judiciary committees and the ranking members are invited to join the chief justice with some of the leaders from the various circuits. it has come to be something that i look forward to. it is not a long time, but you can talk about whatever you wind -- whatever you want, and the views, of course, of the ticket chair and the two ranking members -- the two chair and the two ranking members, they're quite different from each other in terms of the subjects and that they pick as well as the point of view on this subject that they pick. we think that that practice and this practice both make it more

likely that regardless of whether our agreements or disagreements result, they're considered in a more thoughtful way and a less subjective way. i am very grateful that you have chosen to come back again and again to be with us. thank you for that. thank you, mr. chairman. >> while we cannot violate cannon 3, you did volunteer and opened the door by admitting that you are both friends with elena kagan. would you like to continue along that line? >> i think the chairman for his remarks too.

this is an institution where we disagree about a lot of things, and we also agree about a lot of things. by keeping our discussions always had a substantive, a professional level, and doing our our absolute best not to make a subjective or personal, we remain good friends, and we discovered that in a lot of cases which could go either way, it is much easier to reach agreement. your remarks struck a chord in my mind, for which i thank you. >> i agree with that. somehow, the press and sometimes portrays the supreme court as nine scorpions in a bottle. that is not what we are at all. we are all friends. how close our friendship is has nothing to do with how much we agree on particular substantive issues. the fact we are friends makes it easier to listen to one another on the substantive matters,

which is what you were saying, mr. chairman. i wish we had more contact with people on the hill. i think the world was much different when this was a smaller town, a one company town, and all of the social interaction was between the members of the three branches. my colleague here has a lot of contacts on the hill, having worked there for a long time. as friends among the staff, and i am sure among the members. i do not have that. i wish i did no more people on the hill, an associate with them not just an informal hearings like this, but even socially. maybe there ought to be a take a congressman to lunch program. [laughter] >> thank you, sir. mr. cockburn. >> thank you.

it is good to have both on it this side of the hill. what are some of the important strike that -- what are some of the significant difficulties in finding and making recommendations in some of the important areas of the administrative lot? i will be glad to hear from each of you. >> -- of administrative lot? i will be glad to hear from each of -- of administrative law. i will be glad to hear from each of you. >> sometimes you will find someone who is reluctant to take any advice, regardless. that would make it hard to get our recommendations adopted. ordinarily though, since the general counsel of that agency

would normally be part of our operation, and since the agency would have cooperated with the whole study, that is not ordinarily the problem, but it can be a problem. needless to say, getting congress, if our recommendation is one for legislation, you know how easy it is to get legislation through, right? >> lots of things past the house, sir. [laughter] justice breyer, do you want to be heard further? >> i suspect it is a problem that is difficult for many of us. the question is, where can you be effective? then, for example, if there are a large number of different subjects that the legislature might deal with, and you're looking to work and make a difference here, and that depends on what the corporation is from other people, and also you would like to do something significant.

so, i think the chairman, who has a lot of experience in this area, will have to say, well let's see about these agencies. where do we think we can see the progress in this? then there are academics. i was an academic for a long time. in this area, it is wonderful for the academics. they will go out and talk to people who actually are involved in the process and actually have some experience, and so their work will be better. you've got to get the academics, and you have to get them to understand from the practitioners what they want and what they need. anyone who is trying to be affected in an area. >> i want to put one more question to each one of you. one key area for reform the said committee identified in its 21st century project was electronic rulemaking? can you identify it weighs --

can you identify ways in which congress can better make sure that documents are made electronically available but redacted to protect all personal information? >> ordinarily, the agency's rulemaking process is a written process now. whether it is written on a typewriter or on the word processor or electronically does not seem to make a whole lot of difference. where the new electronic age might make a difference is the agency posting its proposed regulations so that they would be available to everybody, readily. that would be a great help. but as far as the seed of recommendations, no, i do not

know whether it would make a whole lot of difference whether they do it electronically or by mail. it is something the congress ought to look into. what difference does the new electronic age make on the agency's work? >> we were pleased that the court, because the congress provided a year ago a small amount of extra money to put all of our proceedings into the online, so everything goes into the on-line, the opinions, within a matter of minutes. the result of that is about a million hits a day. i mean, huge. and that is wonderful because, you know, people can instantly find out what it is we have done and are saying and so forth. but, if you are on the opposite side, of course if you could have a million or 2 million hits, you could have a million

comments. suddenly, you have to figure out, how do we separate the wheat from the chaff? then people get annoyed if they feel they did not get a good response. then perhaps millions of people who you cannot answer -- you can answer the kind of comment, but not necessarily be individual. i figure would be very interesting to find out what goes on, how do we respond online, how do we separate the wheat from the chaff and so forth. >> that is an interesting point that justice breyer makes. since the agency, under normal rulemaking procedures, must consider all of the comments received, you do not want to make it too easy to get comments to the agency. you do not want to have to sift through a lot of garbage that comes through on the internet. maybe it is better to leave the common process in writing. that is something that i think the conference ought to look

into. >> thank you, a gentleman. >> have either of you ever considered tweeting or twitting? >> i do not even know what it is. i have heard it talked about. my wife calls me, "mr. clueless." >> i don't know how it works. remember when they had the service? my son told me, look at this. and oh my goodness. there were people there with photographs as it went on. i sat there for two hours, absolutely hypnotized. i said, my goodness, this is now, for better or for worse, i think in many respects for the better