Class blog at the LSU Law Center for Professor Richards' Administrative Law Class
Day 1 – August 14 – First Day of Class
General Course Information
Required Text: (You can buy these online if they are not available. )
Examples & Explanations: Administrative Law, by Funk, Seamon, 5th ed., 2015 – available online at Amazon and BN.COM.
Additional materials such as cases will be posted on this WWW site. Any proprietary materials will be posted on Moodle. Most class days will include a discussion of Administrative Law in the News. Check the blog the morning before class for any updated news items. I will also provide study materials for specific topics to help you prepare for class and then consolidate your knowledge after our class discussion. If you have been provided study materials as part of your assignment, read them it carefully. We may not cover all the included material in class.
Read Chapter 1, which is a general introduction to administrative law at the state and federal level. We will have a general discussion of the administrative law system.
Administrative Law Glossary(map view) (Word)- These are definitions prepared by Professor Donald Brodie, Emeritus, University of Oregon. They may help you understand basic terms.
We will cover Chapter 2 fairly quickly. It is a mix of historical material, constitutional law review, and core concepts in administrative law. These are important concepts but they are – usually – not at issue in day to day administrative law practice.
This class will focus on congressional control of agencies, starting with the non-delegation doctrine and working through legislative veto and congressional committee review (which we will revisit later in Chapter 4.)
Chapter 2 to 1. Congress (p 41)
Skim this material, it should be a quick review of issues you have discussed in Constitutional Law. I will review it through lecture. We are then going to look at the modern approach as laid out in Whitman. Read the assigned paragraphs carefully and be prepared to discuss the questions in the study guide.
There is a case on cert to the Supreme Court looking at the impact of a statute that was written with a legislative veto before Chadha, and not revised to remove the legislative veto after Chadha. Just skim the case to see the question it poses and how the court handles it.
This class focuses on executive branch control of agencies through the appointments process. There will be a brief introduction to Executive Orders but we will reserve the materials on the executive review of agency actions (usually rulemakings) before they are finalized by the agency. We will look at that review that in Chapter 5.
I am moving the Lucia materials to a later class to allow us to finish Chapter 2 today and so that we have covered the basics of adjudications before we look at the details of Lucia.
We will supplement the Morrison v. Olson materials in the book with these regs and explanations on the current Special Counsel:
Italy is considering adopting a version of notice and comment for approval of infrastructure projects such as highways and bridges. Unlike US notice and comment, it would also include a public hearing component:
(Heads up – The opinion, through paragraph 47, lays out the lower court’s ruling. The lower court ruling is a bit disjoint, so do not expect deep legal reasoning it. Try to identify the facts that the district court based its ruling on.)
Very unusual bias case – “Applying well-established principles to the unusual facts of these cases, the Court concludes that the question is not a close one: Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases. “
Assignment
Finish materials from last class. No additional readings for this class. We will watch and discuss the documentary, The Regulators.
This is a great article on problems with CBA for some health and safety regulations. While there are some legitimate critiques of some specific examples, on balance it is a good introduction to the subject. Read 13-18 and look hard at tables 1-3 at the end. (AED – automatic external defibrillator) Fish oil supplements did not work out, but eating fish is good for you.)
Read carefully. Now that we are done with the structural part of the course, we are going to read some cases very deeply. This is not casebook blurb stuff, we want to dig in and figure out what the court is doing. We are reading Clapper because it reviews the basic standing cases and because it shows how the court can use factual assumptions to limit standing when it does not want to find that plaintiffs have standing.
Read paragraphs 23-85. (We will look at the dissent next class.) This is the standing material referred to in the text. We are going to look carefully at this case and climate change as the critical regulatory dilemma of our time. Concentrate on how the court deals with the “injury to all” problem, and check out dissent’s views. Are you convinced that this is the right analysis? Read the text assignment first, then look for the special procedural standing issues in Mass v. EPA. We will finish reading the case when we are reading Chapter 7.
How many judges dissented? How has the membership of the court changed? This makes the dissent critical – what are they saying and what is the chance that this will become the majority opinion? While I think climate change is the most critical issue facing this country, the dissent may also be right about standing for these cases.
Lexmark is the current and controlling (9-0) case on what zone of interest really means. Read the text’s presentation of the zone of interest cases within the framework of Lexmark.
Group D
Read to B. Exhaustion of Administrative Remedies – 259
Tobacco poses a classic regulatory problem. We will be looking at the conflict between the clear meaning of the words in the Act and the legislative and regulatory history of how the Act was applied. We have Scalia rejecting the plain meaning in favor of legislative history and Breyer rejecting legislative history and going for the clear meaning.
We are going to look at [46] A. Governing Principles to [52] in class. This is the Supreme Court’s most recent application of State Farm – does this limit State Farm?
The police want recordings from Amazon from an Echo in a murder victim’s home. This is classic third party, so at best an administrative warrant is needed. From a story last year:
“In the future, intelligence services might use the [internet of things] for identification, surveillance, monitoring, location tracking, and targeting for recruitment, or to gain access to networks or user credentials,” the Guardian reported Clapper said
The Immigration and Naturalization Act (“INA”) “deals with one of the oldest and most important themes in our Nation’s history: welcoming homeless refugees to our shores,” and it “give[s] statutory meaning to our national commitment to human rights and humanitarian concerns.” 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C. § 1158(a)(1).
Notwithstanding this clear command, the President has issued a proclamation, and the Attorney General and the Department of Homeland Security have promulgated a rule, that allow asylum to be granted only to those who cross at a designated port of entry and deny asylum to those who enter at any other location along the southern border of the United States. Plaintiff legal and social service organizations, Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles (collectively, the “Immigration Organizations”), now ask the Court to stop the rule from going into effect. ECF No. 8. The Court will grant the motion.
Assignment
We are going to briefly look at the Freedom of Information Act, The Privacy Act, and the federal and state open meetings laws. These are critical in practice. This will be a quick survey to introduce you to the concepts and how to use the laws. Rather than using Chapter 9, we will read this document, which is both a practical guide and comprehensive collection of legal resources:
The Climate Change and Public Health Law Site
The Best on the WWW Since 1995!
Copyright as to non-public domain materials
See DR-KATE.COM for home hurricane and disaster preparation
See WWW.EPR-ART.COM for photography of southern Louisiana and Hurricane Katrina Professor Edward P. Richards, III, JD, MPH - Webmaster
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