The starting point for administrative law is separation of powers in the federal government, and how this differs in the states.
Why do we have separation of powers?
What are the three branches of the federal government?
What are the unique powers of each branch of government and each house of Congress?
What are bicameralism and presentment and how are they relevant to agency oversight?
What was the constitutional issue in Chadha and how was it resolved? Why did Congress use the legislative veto? What is the alternative to the legislative veto if Congress does not like a proposed rule or agency policy?
What is the congressional power over agencies, i.e., how are agencies formed, where do they get their legal powers, and how are they financed?
What is the key factor that determines whether an agency must be in the executive branch?
What is an example of a Congressional agency?
What powers can a Congressional agency exercise?
Who are officers of the U.S.; how are they appointed, and how can they be removed? Be specific about controlling clauses in the Constitution and critical case precedent.
How can the president exercise direct control over agency practice? Include executive orders in general, and in simple terms what each of these do Executive. Order 12866, OIRA, and OMB.
What are the limits on presidential control of agencies?
Why is presidential control of agencies important to separation of powers?
What is an independent agency?
Which branch of government are independent agencies in?
How did a case over term of office for an agency commissioner lead to independent agencies?
How is presidential control of independent agencies different from control over cabinet level agencies? (Remember OIRA and OMB.)
What is the policy reason for having independent agencies?
Explain the policy implications of independent agencies and how they challenge separation of powers.
How does separation of powers differ in the states as compared to the federal government?
How does the role of the Attorney General of Louisiana differ from the Attorney General of the United states as relates to separation of powers?
Why is the underlying issue in the Wooley case?
What did Wooley leave unresolved?
Why is the separation of powers issue between the governor and insurance commissioner different from the issue between the courts and the Department of Administration?
What was the "quasi-judicial" analysis in Wooley?
Why is the LA SC's definition of a judge and an ALJ circular?
How does the size and expertise of federal agencies different from many state agencies, and how does this affect the discretion that the courts and legislatures grant to agencies?
Explain how federal enforcement differs from local enforcement.
Use local food sanitation as an example to explain how local enforcement works and unique problems posed by local agency actions. Include issues such as the problems posed by having to go to court, legal representation for the agency being controlled by its city or county legal office, review by city council or county commission, pay and expertise, and any other factors that are important to understanding how local enforcement works.
What is an adjudication?
Explain how to tell adjudication from rulemaking within the context of deciding whether an individual has a right to be heard because his interests are at stake.
How does an inquisitorial process (agency adjudication) differ from a court trial?
Contrast formal and informal adjudications.
Why are informal adjudications called non-APA adjudications?
What are examples of informal adjudications?
Why do the courts try to limit the ability of regulated parties to demand formal adjudications?
What is the "magic" language that triggers a formal adjudication?
What are Article III judges, how are they selected, disciplined, removed, and what are their powers?
Discuss in detail how ALJs differ from Article III judges and the allowable review of the behavior of ALJ's. Include selection, retention, and assignment of work.
What is an initial decision by an ALJ, in contrast to a recommended decision?
Why did the EPA switch to allowing ALJ decisions to be final decisions?
Since the EPA provides internal agency appeals, how is this different from final decisions by ALJs in LA?
How is the problem of ex parte contacts different for ALJs and Article III judges?
Discuss the issue of bias in administrative adjudications, why it is more severe than for Article III trials, and the rights of parties to have an impartial decision maker. What is the standard for disqualifying an administrative decisionmaker?
Discuss ex parte contacts in adjudications, including contact between agency staff, decision makers, parties, and interested persons.
What is separation of functions in administrative hearings and how does this improve the fairness of hearings?
Must agencies separate their functions into investigation, prosecution, and decisionmaking?
Why is separation of functions more difficult for small agencies?
How does having a central panel of ALJs, as in Louisiana, address separation of functions?
What benefit of in-house agency adjudications is lost with a central panel?
What is the purpose of the rules of evidence in Article III trials?
What is the underlying theory of the rules of evidence?
How does this change when there is no jury?
Does the APA set the standard of evidence?
Do all agencies use the same standards for evidence?
Why would the hearsay rule not be as important in an agency proceeding as a jury trial?
What was the Residuum Rule?
What is notice?
Why is it required?
What has to be provided in the notice?
What can complicate notice? What about in immigration? Welfare benefits?
Who has the burden of proof in an administrative proceeding?
Why does it matter who is the proponent of the order?
What is the standard of proof required in an agency proceeding, unless otherwise specified in the law?
Are there other standards in administrative proceedings?
How does the "substantial evidence" standard change the Residumm Rule?
When a hearing officer is overruled by the agency, how should the reviewing court treat the ALJ's opinion - discuss Universal Camera Corp. v. NLRB in your answer.
Using lawyers as an example, what are the basic legal requirements for licensing?
What are the enforcement advantages of requiring a license as compared to having the agency look for violations in an ongoing activity?
How are the legal standards for initial licensing different from a license review or revocation? Why?
How are the potential parties different for a law license than for a TV station license?
How does this change the adjudication?
Discuss the problem of agencies taking official notice of information, how this can influence the defendant's due process rights, and how the record is the key to resolving these problems.
What are the requirements for a record of an adjudication and how are they reviewed by the courts?
What did the Pillsbury cases tell us about the problem of Congress trying to influence adjudications.
How can rulemaking be used to improve the efficiency of adjudications?
Explain the different ways an agency may use the AJ or ALJ's opinion in arriving at a final holding in an adjudication. How do these differ from rulings by Art. III judges?
Explain how inspections are a form of adjudication.
What is the difference between substantive and procedural due process?
What is the basic due process requirement for revoking a license?
When can it be done without this process?
What process can be substituted?
What is a "taking"?
What due process is involved?
What about compensation?
How is compensation measured?
What is a regulatory taking?
What is the "new property"?
How are the rights different for new property versus old property?
What if I take your medical license, versus taking your land?
What if I abolish your job or your welfare entitlement?
How strong is the notion of new property?
What makes a benefit an entitlement?
What is a matrix regulation?
Explain the procedural rights established in Goldberg v. Kelly, how they differ from the rights given indigent criminal defendants, and how the rights are specifically tailored to the special problems posed in providing due process to an indigent welfare population.
How did the Welfare Reform Act of 1996 eliminate welfare as an entitlement?
What do Roth and Sinderman tell us about the due process rights of public employees?
What special due process must an LA licensing board provide before suspending a license?
What if the licensee is endangering the public?
What are examples of liberty interests?
Privacy as a protected liberty interest: What does the case of the drunkard and the shoplifter tell us?
How do the "perverts R us" WWW site cases modify this? (Connecticut Dept. of Public Safety v. Doe, 123 S.Ct. 1160, (2003); Smith v. Doe, 123 S.Ct. 1140 (2003)
What rights does a prisoner retain and why should we care?
When does prison disciple trigger a hearing? What is the most important consideration?
Assume you have been hired to develop a new set of prison regulations for Angola. What are the tradeoffs you must deal with? What happens if prisoners have lots of rights? What if prisoners have no rights?
How does Matthews v. Eldridge modify Goldberg and why did the court limit the Goldberg rights?
What is the Matthews balancing test?
What is the "bitter with the sweet" doctrine (Loudermill)? Is it still good law?
What is the Matthews analysis in school suspension and paddling cases?
What are alternatives to due process claims? For example, the case of the medical student who did not get the internship she bargained for. Why are these alternatives sometimes better for you client? What is the most you can win in a due process case?
What does Altman v. City of High Point tell us about the administrative management of dogs, owners rights, and the rights of society? This is a good review of the problems of local regulatory agencies.
What is rulemaking?
Why is rulemaking a favored policy? Be specific and explain how rulemaking improves the efficiency of government and makes it easier for regulated industries and individuals to know their duties.
What are the downsides of rulemaking and how can it undermine democracy?
What is a formal rulemaking, when is it required, and why is it so disfavored by the courts.
What are the requirements for notice and comment (informal) rulemaking.
Can a rule be retroactive?
Can the record for a rule be supplemented after the original publication?
What about in response to comments?
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. What is the role of agency discretion in this analysis?
What does Chamber of Commerce v. U.S. Dept. of Labor, 174 F.3d 206 (D.C. Cir. 1999) tells us about coercion and the determination of whether a policy is binding? What are the requirements for proving proper notice of the contents of a rule? Be specific, using Chocolate Manufacturers Ass'n v. Block as a example, and also explain the interplay between the agency's formal notice and the comments it receives.
What about when the agency relies on scientific data? What is the public entitled to in the register posting?
What is hybrid rulemaking?
Explain the significance of Vermont Yankee v. NRDC for hybrid rulemaking.
What were the facts in Vermont Yankee?
Why did the agency want to use a rulemaking instead of adjudications for each plant?
What did the lower court want to require?
What did the United States Supreme Court rule?
Why is this still a major problem for nuclear power plants?
Discuss the limitations on ex parte communications and political influence in rulemaking, including how Sierra Club v. Costle modified the law from Volpe.
What is the president's role in rulemaking?
How are the problems of bias and prejudice different in rulemaking as opposed to adjudications?
What is the standard for disqualifying the secretary for rulemaking?
How does the notice provision in rulemaking change the issues in ex parte communications?
How does the notice requirement eliminate the ex parte communications issues for communications before the promulgation of the rule?
When are ex parte communications an issue?
How can you cure this?
What are the exemptions from rulemaking?
Discuss rulemaking for emergency situations and what accommodations can be made to traditional notice and comment.
Discuss rulemaking petitions and the extent of the court's power to force an agency to make a rule.
What is the role of the petition for rule making in Mass. v. EPA?
Discuss waivers of rules, when they should be granted, and what political and due process problems they raise.
Discuss cost benefit analysis (CBA) and the conflict between Goldberg v. Kelly and Matthews v. Eldridge. How did the courts expand Matthews in later cases? How does this fit in with discretionary decisionmaking as a defense to tort claims?
What is Justice Breyer's tunnel vision problem on regulations? Can CBA cure this?
Discuss the federal tort claims act, what it applies to, and the discretionary function defense.
What does the "no law to apply" doctrine mean in the context of review of discretionary agency actions?
What are the three general jurisdiction statutes for getting into court when Congress does not specify an appeal mechanism, and what does each apply to?
What is case and controversy? Can it be waived by Congress? What does it have to do with advisory opinions from federal courts? Do some states have a different standard for case and controversy and advisory opinions by the their courts?
What is standing?
Discuss the components of standing: Injury, Causation, and Redressability.
Discuss and distinguish the injury in fact and zone of interest tests.
Discuss the standing of federal agencies to contest the actions of other agencies.
What is the irreducible minimum for standing?
May congress give anyone standing to sue and why?
Why is the standard for the necessary allegations for standing different at the summary judgment rather than the motion to dismiss stage?
When can associations sue on behalf of their members?
When can groups sue for third parties who are not members of their group?
What is the problem with third party standing, as in Eastern Kentucky?
What is the special problem with redressablity for procedural injuries?
How does this court resolve this?
Discuss tax payer standing in state and federal actions.
Does congress have standing to sue to overturn its own laws?
What is a final agency action?
What do you have to show to claim a final agency action for documents like opinion letters?
Can you contest an opinion letter to a third party?
What was the final agency action problem in the Standard Oil case?
Discuss: final order rule; ripeness; facial challenge; exhaustion of remedies; and primary jurisdiction.
Discuss pre-enforcement review, contrasting Abbott Labs with Toilet Products.
What is the ripeness issue in these cases?
Is ripeness a constitutional issue?
Was the dispute ripe in National Automatic Laundry ripe?
How does pre-enforcement review help the beneficiaries of regulations?
What is the finality problem with reviewing non-legislative rules, i.e., guidelines, letter rulings, etc.? Give an example of when a letter was found to be final action.
Why is getting an injunction critical to pre-enforcement review?
What are the factors the court should consider in reviewing a request for an injunction in a pre-enforcement challenge case?
What is exhaustion of remedies?
How do you know if exhaustion of remedies is an issue in a case?
What are the exceptions to exhaustion of remedies?
What is administrative issue exhaustion? When will the court waive it?
What are the factors to balance in exhaustion cases?
What is the futility doctrine and how do you satisfy it?
When can exhaustion result in preclusion and what choice of remedies problem does this pose to counsel?
What is collateral estoppel and non-acquiesce?
When does the primary jurisdiction doctrine come up?
How do the primary jurisdiction doctrine and exhaustion doctrine differ?
What are the standards the court should use when deciding whether to defer to an agency in a primary jurisdiction case?
What is the general rule on which actions are reviewed by district courts and which are reviewed by circuit courts?
When can you remove challenges of state agency actions to federal court?
Discuss mandamus, including the standards for relief and when you would use it.
Define and distinguish these standards for review of agency findings of fact: Trial de novo; Independent judgment on the evidence; Clearly erroneous; Substantial evidence; Some evidence; and Facts not reviewable at all.
What is standardless delegation and why does congress sometimes use it?
How does standardless delegation affect Chevron review?
When can this cause the court to refuse to defer to the agency?
How should the courts treat the agency's interpretation of what the law means? What are the three tests and what do they mean?
What were the facts of Chevron U.S.A., Inc. v. Natural Resources Defense Council and how is the resolution in Chevron an example of the Chevron two step?
What factors should indicate to a reviewing court that an agency interpretation of law is probably correct?
What is legislative history and how can it be manipulated?
Explain why Motor Vehicles Manufacturers Assoc. v State Farm is important and how it fits into the larger seatbelt regulatory picture.
What is hard look review?
What is the trade off between standards of review and agency flexibility?
What are the pros and cons of hard and soft look review?
How did Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) change the understanding of committed to agency discretion?
What are the ways to attack regulations if they are not being enforced against your client and the initial statutory review period has passed?
How do you distinguish Mead from Chevron?
What are the Barnhart Factors for evaluating agency persuasiveness?
When can you claim equitable estoppel for relying on agency advice?
Can you get damages from the agency for bad advice?
Be prepared to explain the Chevron steps and analysis in FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (U.S. 2000). How was the law ambiguous? What was the regulatory conflict problem? What was Breyer's solution?
How do agencies gather information?
What are the due process rights for agency subpoenas and how do these differ from criminal law due process rights? How might this cause problems in a Medicare billing investigation where the agency is investigating for civil penalties and DOJ wants to prosecute?
When does self-incrimination apply to documents?
When does self-incrimination apply in administrative searches? How can you cure the problem?
Why don't administrative searches violate the 4th amendment?
How did the See and Camara Courts modify the Frank Court's rule on warrants for administrative searches?
What are area warrants used for, why are they required, and how do they differ from criminal law warrants?
What are the Burger factors for deciding if a business is pervasively regulated? How do warrant requirements differ for these businesses?
Why was criminal prosecution allowed for evidence obtained in an administrative search in Burger?
How can licensing and permits meet the Burger factors and allow warrantless searches?
What are the issues when an administrative search, such as a restaurant inspection, turns up evidence of an unrelated crime - say the health inspector finds the cook's cocaine stash?
What is the policy behind FOIA?
What is the standard for judicial review of denials of FOIA requests?
When will the court defer to the agency in the review of FOIA requests?
How is FOIA different from discovery?
Why would you use FOIA instead of discovery?
What does it mean to say that FOIA is about access to records and not to information? How is this changing in the electronic world?
How do you request documents under the FOIA?
What are the major exceptions to FOIA access?
What is a Glomar response and why is it necessary?
What is reverse FOIA?
How does Ex. Order 12600 require? Why is this critical to reverse FOIA protections?
What is the privacy act and what does it allow you to do?
What are Sunshine Acts?
What is a meeting under a Sunshine Act and why is the definition important?
How do Moberg and FCC v. ITT differ in their definitions of meetings?
How do agencies try to get around Sunshine acts?
What are the basic provisions of the Federal Advisory Committee Act (FACA)?
How does the FACA potentially violate separation of powers?
What is sovereign immunity?
What is the court of claims?
What is a tort claims act and why were they passed?
What is the procedural prerequisite before going to court under the FTCA?
What cases do tort claims acts exclude for most government employees? Who may these claims be brought against under the FTCA?
What is the discretionary function exception?
Why is the discretionary function exception necessary to protect the other political and judicial controls on agencies?
What does the Atom Bomb case tell us about the breadth of the discretionary function exception?
What were the lessons of Berkowitz and Varig Airlines?
What does oyster law tell us about discretionary authority and Louisiana law?
Why was 42 USC 1983 passed?
Who can you use under 1983?
What violations is 1983 intended to address?
How are tort claims acts and 1983 complimentary?
What is qualified immunity?
How is qualified immunity different from the discretionary function exception?
What does this tell us about the different purposes of tort claims acts and 1983?
Why do legislators and judges get absolute immunity under 1983?
How does the 11th amendment limit claims under 1983?
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