Administrative Law - Fall 2001

Notes and Questions - 575

1 - What did the SC say was often the real determinant of whether as issue was law or facts?

6 - Fat Doc Problem - be prepared to discuss this and the issues the doc and the agency would raise on judicial review.

Supplement Readings

Read starting at § 9.2A  THE LIMITS OF THE CHEVRON DOCTRINE and through UNITED STATES v. MEAD CORP. 121 S.Ct. 2164 (2001).

We will not have an extensive discussion of Mead, but be prepared to discuss:

How is the regulation being reviewed in Mead different from the one in Chevron?

How does the majority's review in Mead differ from that in Chevron and why?

Why does Scalia reject the majority's rule?

What would he do?

Who do you think is right?

§ 9.4 Judicial review of Discretionary Determinations in Adjudication - 578

Salameda v. Immigration and Naturalization Service - 579

When did they come to the US?

How long was their visa and what happened when they tried to renew it?

When did they get their hearing?

What did the ALJ rule?

What did they have to show to stay in the US?

Who was the citizen?

What is the INS argument?

Why is there so much delay?

What was the evidence of hardship?

What was the procedural move by the INS that Posner did not like?

What did Posner say was the legal issue?

How did he characterize their actions?

What is really behind Posner's actions?

What is Easterbrook's disagreement?

How does he characterize the Philippines?

What is his argument about the problems with the agency record?

What would be the implication of adopting Posner's views?

Notes and Questions - 585

2 - Overton Park v. Volpe - United States Supreme Court 1971

This is an important case, despite being in the notes.

What was being built?

What was the protest - why did the citizens say this was an improper decision?

What was wrong with the record?

What did the district court do?

Did the United States Supreme Court require formal findings?

What needs to be in the record, however?

Was this a formal adjudication?

What was the proper standard of review of the agency's action?

3 - Chalking in the boundary lines

How do courts expand their ability to review agency decisions such as Volpe?

How was this modified in Pension Benefit Guaranty?

4 - exercise of discretion

Is discretion bounded by precedent?

Why or why not?

5 What are the reasons to set aside agency action?

7 - Open or Closed Record

Do the federal courts generally allow the record to be supplemented?

Do any courts allow it?

What are the pros and cons?

Why are the consideration different at the state level?

§ 9.5 Judicial Review of Discretionary Decisions in Rulemaking - 592

The sea-belt controversy as a case study in the effect of politics and changing administrations on agency regulations

First, there is popular concern about accidents

Then interest groups

Individual stories - MADD is an example

Nader and Public Interest

Unsafe at any Speed - 1965

Insurance industry

Then Congress passes the Traffic and Motor Vehicle Safety Act

1967 - regulation requiring seatbelts

1972 - realized that people where not wearing the seatbelts

Regulation requiring automatic seatbelts or airbags by 1975

Required cars between 1973 and 1975 to have automatic seatbelts or ignition interlocks

Chrysler v. DOT affirmed the regs

Industry choose interlocks - why?

1974 - Congress passed a law banning regs requiring interlocks and said that all future regs on passive restraints had to be submitted to Congress for legislative veto

DOT under Ford withdrew the regs

DOT under Carter (a few months later) passed new passive restraint regs for 1982 and Congress did not veto them

1979 - Regs were affirmed in Pacific Legal Foundation v. DOT

1981 - DOT under Reagan withdrew the regs because the car companies were going to use automatic seatbelts that could be disconnected.

1983 - Motor Vehicles Manufacturers Assoc. V State Farm hit the United States Supreme Court

1984 - DOT (Libby Dole) promulgated a reg requiring automatic seatbelts or airbags in all cars after 1989, unless

2/3 of the population were covered by state seatbelt laws, and

the laws met certain criteria

What did MO do?

$5 penalty

No stop

No meaningful seatbelt defense

Most State laws did not meet the criteria

1997 - most newer cars had airbags

1998 - airbags kill grannies and little kids!

Nothing new - known at the time

Save many more

1999 - You can get your airbag disconnected

Products liability issues?

Motor Vehicle Manufacturers Ass'n. v. State Farm Mutual Automobile Ins. Co. - 592

What was the key agency law issue in this case?

How is the relevant to the transition from Clinton to Bush?

How did it drive the midnight rulemaking?

What was the rationale for the court's ruling?

How is this different from saying that agencies are bound by precedent?

Borden, Inc. v. Commissioner of Public Health - 599

What does the state law say about labeling dangerous substances?

What does the health department want to ban?

Why?

What would the label have to say?

Why is that not effective?

What did the trial court do?

What does the appeals court say the plaintiff has to prove?

Does the evidence have to be conclusive?

What if the experts disagree?

Notes and Questions - 602

What is hard look review?

Is this an end run on Chevron?

What is the trade off between standards of review and agency flexibility?

What are the pros and cons of hard and soft look review?