10PM - Blog closed. Sleep tight.
> I have another question. Waivers of rules, when they should be
> granted, and what political and due process problems do they raise?
Do not worry about it. We did not cover this sufficiently this year to be on the exam. Waivers from rules create due process problems for parties who are subject to the rules, while others are excluded. They may be proper to grant if there is an objective set of criteria for granting them, and a proper rationale for the waiver that does not undermine the legal and policy basis for the rule itself.
> in a regulatory taking the government is still required to give just
> compensation if the investment back expectations of a property are
> diminished and if the property is no longer useable for its former purpose. Is
> this correct?
Generally the standard is that the property has to be left with little or no value. The big effect is usually limits on future development, not present use. But if the spotted owl decides to live in your wood lot, you might not be able to cut the trees anymore, and that would not be a compensable taking. It is not like a nuisance tort where the measure is diminished value. This is a very controversial area of law.
> Your Question:
> 11. What are the factors the court should consider in reviewing a request for
> an injunction in a pre-enforcement challenge case?
> I have looked through my notes, your slides, and the book and don't see any
> specific factors. I am assuming a court must look at the severity of the
> penalty attached with the enforcement action?
First, what is the basic standard for injunctions from civ pro, then think about the Abbott Labs and Toilet Goods cases. The penalty is part of the consideration, but what else? Do courts want to be interfering in agency actions with injunctions? Why were they willing to in Abbott Labs?
> The question states:
> How much process is involved in the action in Chevron?
> What "process" are you referring to?
The agency process in making the rule, letter, etc.
> Is each separate office (i.e. governor, commissioner of insurance,
> attorney general) a separate "power" because it is Constitutionally
While state separation of powers theory is not as clearly developed as federal, a key issue is whether the official is an elected head of an agency, as opposed to appointed. It is simple in the federal system because we have one elected executive, the president. Elected officials are supposed to represent their voters, and not be trumped by other elected officials. But the legislature always retains the real power, because it can move power from one agency to another, as it did in Wooley. So the governor can trump the insurance commissioner because of the legislative shift of power.
> Your Question: Before the DAL legislation, the ALJs were part of their
> constitute agencies. Who do they report to after the DAL legislation? Does
> this pose separation of powers issues?
> Will you discuss the separation of powers distinctions between the state
> and federal systems? I understand that the state does not have a unitary
> executive, and that some agency commissioners are Constitutionally
> specified members of the executive department. I also understand that the
> DAL houses the panel of ALJs, and the DAL director is appointed by the
> governor. I am assuming that the ALJs report to the director, who then
> reports to the governor. What I don't understand is why this is a
> separation of powers problem. If they are all a part of the executive, why
> does it matter? In the fed system, it is acceptable - even presumed - that
> the president will have a direct say in agency actions. Is it different in
> LA? Is this a problem because the executive is influencing a judicial
> function? Didn't Wooley say that the ALJs were performing a quasi-judicial
> function? Wouldn't it be OK for the executive to intervene in a quasi-
> judicial decision? Obviously, I need help! Ha!
You are thinking federal, with a unitary executive. Does LA have a unitary executive? Think about the governor and the attorney general or the insurance commissioner. How does this change the nature of potential separation of powers issues in a state versus the federal government?
> How does the notice requirement eliminate the ex parte
> communications issues for communications before the promulgation of
> the rule?
Think about what ex parte communication means and how you usually solve issues it poses in adlaw, then think about what you have to publish to support a rule.
> The question stated:
> What are the limits on the doctrine, i.e., what keeps the police from
> just asking your neighbor to break into your house and look for
> We answered:
> You would then become an agent of the government, and the same
> restrictions would apply to you as the to the police. All of the 4th
> and 5th protections would apply.
> Are we on the right track?
Yes. For our purposes, if the state requests or directs a private party to collect information about an individual, 4th and 5th Amendment protections would apply (or not) as if the information were collected by the state itself.
> After the amendment to the FTCA (2680(h), can you still bring a Bivens
> action against the individual and also get recovery under the FTCA, or
> does the FTCA become the only cause of action?
In general, the FTCA is a parallel remedy and does not displace Bivens. [ Beyond the scope of this course: It is easier to make an FTCA case, but you cannot recovery punitive damages, you do not get a jury trial, and FTCA damages are paid by the government rather than the individual defendant. Thus if you want to deter an individual, Bivens is better. If you just want to get money and it looks like an ordinary negligence case, FTCA is better. See: https://biotech.law.lsu.edu/cases/immunity/Castaneda.htm]
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