Notes and Questions - 575
1 - What did the SC say was often the real determinant of whether as issue
was law or facts?
6 - Fat Doc Problem - be prepared to discuss this and the issues the doc and
the agency would raise on judicial review.
Read starting at § 9.2A THE LIMITS OF THE CHEVRON
DOCTRINE and through UNITED STATES v. MEAD CORP. 121 S.Ct. 2164 (2001).
We will not have an extensive discussion of Mead, but be prepared to discuss:
How is the regulation being reviewed in Mead different from the one in Chevron?
How does the majority's review in Mead differ from that in Chevron and why?
Why does Scalia reject the majority's rule?
What would he do?
Who do you think is right?
§ 9.4 Judicial review of Discretionary Determinations in Adjudication - 578
Salameda v. Immigration and Naturalization Service - 579
When did they come to the US?
How long was their visa and what happened when they tried to renew it?
When did they get their hearing?
What did the ALJ rule?
What did they have to show to stay in the US?
Who was the citizen?
What is the INS argument?
Why is there so much delay?
What was the evidence of hardship?
What was the procedural move by the INS that Posner did not like?
What did Posner say was the legal issue?
How did he characterize their actions?
What is really behind Posner's actions?
What is Easterbrook's disagreement?
How does he characterize the Philippines?
What is his argument about the problems with the agency record?
What would be the implication of adopting Posner's views?
Notes and Questions - 585
2 - Overton Park v. Volpe - United States Supreme Court 1971
This is an important case, despite being in the notes.
What was being built?
What was the protest - why did the citizens say this was an improper decision?
What was wrong with the record?
What did the district court do?
Did the United States Supreme Court require formal findings?
What needs to be in the record, however?
Was this a formal adjudication?
What was the proper standard of review of the agency's action?
3 - Chalking in the boundary lines
How do courts expand their ability to review agency decisions such as Volpe?
How was this modified in Pension Benefit Guaranty?
4 - exercise of discretion
Is discretion bounded by precedent?
Why or why not?
5 What are the reasons to set aside agency action?
7 - Open or Closed Record
Do the federal courts generally allow the record to be supplemented?
Do any courts allow it?
What are the pros and cons?
Why are the consideration different at the state level?
§ 9.5 Judicial Review of Discretionary Decisions in Rulemaking - 592
The sea-belt controversy as a case study in the effect of politics and changing
administrations on agency regulations
First, there is popular concern about accidents
Then interest groups
Individual stories - MADD is an example
Nader and Public Interest
Unsafe at any Speed - 1965
Then Congress passes the Traffic and Motor Vehicle Safety Act
1967 - regulation requiring seatbelts
1972 - realized that people where not wearing the seatbelts
Regulation requiring automatic seatbelts or airbags by 1975
Required cars between 1973 and 1975 to have automatic seatbelts or ignition
Chrysler v. DOT affirmed the regs
Industry choose interlocks - why?
1974 - Congress passed a law banning regs requiring interlocks and said that
all future regs on passive restraints had to be submitted to Congress for legislative
DOT under Ford withdrew the regs
DOT under Carter (a few months later) passed new passive restraint regs for
1982 and Congress did not veto them
1979 - Regs were affirmed in Pacific Legal Foundation v. DOT
1981 - DOT under Reagan withdrew the regs because the car companies were going
to use automatic seatbelts that could be disconnected.
1983 - Motor Vehicles Manufacturers Assoc. V State Farm hit the United States
1984 - DOT (Libby Dole) promulgated a reg requiring automatic seatbelts or
airbags in all cars after 1989, unless
2/3 of the population were covered by state seatbelt laws, and
the laws met certain criteria
What did MO do?
No meaningful seatbelt defense
Most State laws did not meet the criteria
1997 - most newer cars had airbags
1998 - airbags kill grannies and little kids!
Nothing new - known at the time
Save many more
1999 - You can get your airbag disconnected
Products liability issues?
Motor Vehicle Manufacturers Ass'n. v. State Farm Mutual Automobile Ins. Co.
What was the key agency law issue in this case?
How is the relevant to the transition from Clinton to Bush?
How did it drive the midnight rulemaking?
What was the rationale for the court's ruling?
How is this different from saying that agencies are bound by precedent?
Borden, Inc. v. Commissioner of Public Health - 599
What does the state law say about labeling dangerous substances?
What does the health department want to ban?
What would the label have to say?
Why is that not effective?
What did the trial court do?
What does the appeals court say the plaintiff has to prove?
Does the evidence have to be conclusive?
What if the experts disagree?
Notes and Questions - 602
What is hard look review?
Is this an end run on Chevron?
What is the trade off between standards of review and agency flexibility?
What are the pros and cons of hard and soft look review?
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