> In terms of this question,
> How do you defend an interpretive rule or guideline when the agency is
> attacked for always following the guideline, thus making it into a de facto
> My immediate thought is just to show it is an interpretive rule and not a
> legislative rule using the substantial impact or legally binding test, but I
> feel like this is not what you're asking.
That question could be worked a little better. You have the right approach: you either have to show that the guideline has no substantial impact because it only restates the law, or you have to show that the agency is not following it all the time, i.e., that the agency is still exercising discretion rather than treating this as a binding rule.
> I have another questions about the Admin. Exam. Some of the questions
> involved direct yes or no answers. Would you prefer if we answered them with
> just a yes or a no or would you rather us answer them yes/no then explain?
> For instance:
> Question: Does the U. S. Constitution lay out clear guidelines for federal
> administrative law?
> No, the Constitution did not contemplate a large federal government.
> Agencies were known to exist, but since the scope of government and
> complexity future law was not contemplated, the Constitution is not clear.
> Also, Because the founders did not contemplate such a large federal
> government and most governmental functions were carried out by state and
> local governments, framing the administrative state was not important.
If I were to ask you the simple yes or no question, yes or no would be fine. But I suspect it would be followed by, "please explain".:-)
> Just a quick question. I notice that your tests are generally 30-40
> questions with a maximum of 75 words per answer. If the question can be
> answered in one sentence, is that enough? Would you want us to elaborate for
> more points or is that just a waste
> of time?
> I guess this question comes from my experiences with tick graders, who give
> points for statements that, while intelligent, don't really specifically
> answer the question proposed.
If the question can be answered in one sentence, or one word, you will NOT get extra credit for elaborating. But you should read the question carefully and make sure you have answered it. If you are not sure, you might to elaborate. I do give partial credit.
OTOH, if you have answered it correctly and then keep rambling, you run the risk that you will then say something that is wrong and you will lose points. If you show me that you do not actually know the answer and are just guessing, then you are worse off.
This advice is good for my exams only. Other professors have different approaches to grading.
> Throughout the semester there were some cases that had study questions
> associated with them. Will the exam include questions from those individual
> case study guides, or will the exam come solely from the study guides for
> each chapter posted at the top of the webpage?
The exam comes from the study questions that are on the beginning of the WWW page, Chapter's 1-9, plus a set that will be posted on suing agencies. Do not worry about the study guides for the cases for exam prep.
> Some of the Chapter 4 questions discuss bias in administrative
> hearings. Could you explain the meaning of this statement from the book
> (the book doesn't really detail it too much): "ALJs are insulated by
> the Separation of Functions provision, 5 U.S.C. § 554(d), from being
> involved in or subject to the direction of persons (other than the head
> of the agency) who participate in the investigatory or prosecutorial
> process." p.132
> Does this just mean that the ALJs do not have to listen to people who
> participate in the invest. or prosec. process or does this address the
> fact that ALJs can't participate in the invest./prosec. functions? The
> book isn't very clear.
The core purpose of separation of functions is to assure that the ALJs make an independent decision that is not dictated by the investigating or prosecuting staff. So they can have contact with the other staff, but the ALJs have to be free to write their own opinions. As for investigation or prosecution - ALJs do conduction inquisitorial hearings, so they are asking questions and trying to assure the truth. They are not just neutral referees. To an outsider, it might seem that the ALJ is acting like a prosecutor at times.
> Also, regarding this question:
> How might this have affected the comments by the EPA Secretary during
> the BP spill?
> Which comments are you referring to? I don't see them in any of the
> slides from class and I didn't write verbatim the comments into my
Not as regards any specific comments, but what would as her lawyer tell her about talking to the press about the spill. Remember, the EPA is the lead enforcement agency for the spill.
> Would it be advisable for me to answer the review questions you put up
> on the website or just memorize answers from old tests like the rest of my
> classmates? or both? =)
From the blog header:
Warning - do not study the questions on the old exams. The material changes from year to year, and these may contain questions on material we did not cover this year. Stick to the review questions that I have provided for this year.
I refine the questions through time, and I am also aware of the questions I have asked in previous years. I make a conscious effort to include significant new material on each exam, but since there is only a certain amount of material in the course, a lot of appears on the exams through time.
My philosophy is that the exam is a game. I have to trick you into learning as much as I can. I can only test on a small part of the course. I need to be arbitrary and capricious in my selection of material for the exam so you cannot accurately predict what will be on the exam. Once you start working on the exam, the learning is over. At that point, it is just an exercise in ranking you because law schools like rankings. The only academic value of the ranking is to encourage you to study for the exam.
> Could you please provide a brief description or explanation about "stigma
> plus" either in class or on the exam discussion board? All I have from my
> notes is that in the case of termination and deprivation of liberty, one
> must show that the damage to the reputation must be "incident to the
> termination of employment." Then I have a brief description about the
> Siegert v. Gilley case.
> I'm not sure if this is Stigma plus or if there is more to it than that.
This is discussed in some detail in Chapter 4, in the a. Liberty and Reputation section, including working through the concept in the Melissa hypos. Take a hard look at this material and see if you can answer your question.
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