Fall 2006 - Richards
Put your exam number on each page of the examination. Do not put your name or any other identifying information on the examination. Read the entire exam before answering any questions. Make sure you have all the pages and that they are all different. Use no more than the space provided. Do not write on the back. If you are using the computer, each question has a 120 word limit. If you use the computer, make sure you number your answers to match the question numbers.
1) From a separation of powers issue, how does the office of attorney general in Louisiana differ from the office of attorney general in the federal government?
2) Under the legislation under attack in Wooley, how is the relationship between an ALJ and an agency in Louisiana different from that in other states?
3) What are the policy implications of the relationship between ALJs and agencies in Louisiana, i.e., why do other states and the federal government avoid this type of relationship to assure that legislative policy is correctly carried out?
4) What is the administrative law significance of Motor Vehicles Manufacturers Assoc. v. State Farm, i.e., how does it modify the procedure for notice and comment rule making?
5) What was the procedural difference between the way the rule was promulgated in Chevron and in Mead?
6) Based on your answer in question 5, how and why did this procedural difference influence the level of deference the court gave to the rule?
7) What is the agency cost issue in Goldberg v. Kelly, and how can it ultimately harm persons entitled to welfare benefits?
8) What factors should the court consider when deciding whether to defer to an agency in a primary jurisdiction case?
Assume that for this exam that the New Orleans Levee Board during Katrina was an agency of the state and was covered by the Louisiana Tort Claims Act. It was found after Katrina that the pumps on the levees could not be operated during the hurricane because they needed human operators to keep the intakes clear, and it was too dangerous to let the operators stay during the storm.
9) What is the plaintiff's argument that is negligence that will allow recovery under the tort claims act?
10) What is the state's argument that there should be no liability?
11) What is the Equal Access to Justice Act?
12) In St. Marks Baths, why did the plaintiffs argue that the bathhouses should not be closed, and why did the court reject this argument?
13) What positions did Scalia and Breyer take in the tobacco regulation case and why did their justifications for these positions differ from their usual positions?
14) What was the result in these cases and why do they differ: Berkovitz by Berkovitz v. U.S. and Allen v. United States?
15) The ACLU has asked the Department of Justice for information about persons it identified during post-911 investigations and has subsequently detained. What specific sections of the FOIA could you use to defend the DOJ position and why would they apply?
16) What is a Glomar response and when is it important? What problem does it cause for judicial review?
17) How is FOIA different from discovery and why would you use it instead of discovery?
18) Discuss the analysis used to determine whether an agency document is a rule, requiring notice and comment, or an interpretive guideline or a policy statement.
19) What are area warrants used for, why are they required, and how do they differ from criminal law warrants?
20) What are the requirements for deciding if a business is pervasively regulated? How do warrant requirements differ for these businesses??
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