Thursday, December 15, 2011

Robert A. Anthony, RIP

Last December, the Free State Foundation lost an esteemed member of its Board of Academic Advisors, when Alfred E. Kahn passed way. Fred was a distinguished public servant and one of the nation's leading scholars on regulation, especially regulatory economics.

Now, FSF has lost another distinguished member of its Board of Academic Advisors. In November, Robert A. Anthony passed away after a lengthy, valiant battle against cancer. At the time of his passing, Bob was GMU Foundation Professor Emeritus at the George Mason University School of Law.

He received his undergraduate degree from Yale, a degree in jurisprudence from Oxford on a Rhodes Scholarship, and his law degree from Stanford. Then he set about on a remarkable career as a professor, law practitioner, and public servant.

Without doubt, Professor Anthony was one of the most preeminent – and oft-cited – administrative law scholars of his generation. Taking a leave from his teaching, he served during its formative years as one of the early Chairs of the Administrative Conference of the United States.

For a more complete appreciation of Professor Anthony's life and accomplishments, please see this memorial resolution adopted by the ABA Section of Administrative Law and Regulatory Practice shortly after his death.

Here I want to call special attention to just one part of the resolution, the part recognizing that Professor Anthony was "one of the foremost authorities on agency rulemaking and the use and misuse by agencies of policy statements and guidance documents." Bob was, indeed, the nation's leading authority on the use by administrative agencies of interpretive rules, policy statements, and guidance documents. His central concern was that agencies not abuse their authority by attempting to legally bind the public without adhering to proper process.

In one of his most oft-cited law review articles – cited in both Supreme Court and D.C. Circuit opinions – Professor Anthony explained:

"An agency may not make binding law except in accordance with the authorities and procedures established by Congress. To make binding law through actions in the nature of rulemaking, the agency must use legislative rules, which ordinarily must be made in accordance with the notice-and-comment procedures specified by section 553 of the APA." Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like – Should Federal Agencies Use Them to Bind the Public, 41 Duke L. J. 1311 (1992).

So, a significant part of Professor Anthony's scholarship was devoted to explaining why, if America is to remain a nation subject to the rule of law and not to the whims of men, it is necessary – before purporting to bind our citizens – for unelected agency officials to be required to adhere to process required by law. With the seemingly intractable growth of the administrative state, this is a matter of no small importance.

On the Free State Foundation's homepage, we proclaim that our mission is "to promote, through research and educational activities, understanding of free market, limited government, and rule of law principles." My understanding of the rule of law principles that FSF aspires to promote owes much to Bob's teaching.

For me, Bob was a mentor, a scholarly colleague, and a helpful member of FSF's academic advisory board. And, above all, a good and caring friend.

So, Robert A. Anthony, RIP.