§ 5.5.2 Ex Parte Communications and Political Influence in Rulemaking - 264
Why is the ex parte problem different in rule making than in adjudication?
Should we can about ex parte contacts in rule making?
Home Box Office, Inc. v. FCC - 264 - 1977
What did these rules regulate?
What was the purpose of these rules?
What was the ex parte contacts problem?
What did the court want the agency to do?
When do ex parte contacts become an issue?
What should be done if there are ex parte contacts during this restricted
Sierra Club v. Costle - 267 - 1981
What was being regulated?
Why did Senator Bird care?
What should Congress do if it does not like ex parte contacts in rulemaking?
Did it do so in this case?
What should be documented?
What is the key test when looking at the record?
What is the president's role in rulemaking?
Does the president have the same role in adjudication?
Are the president's contacts always documented?
When should they be docketed?
What is the Volpe test for whether a rulemaking may be overturned solely on
evidence of Congressional pressure?
What did the court rule when it applied these to this case?
Notes and Questions - 272
1 - Do ex parte contacts matter in rulemaking?
Why is the record very different in adjudications and rulemaking?
2 - Why rulemaking often political?
Should the agency be allowed to be lobbied by other government agencies with
no disclosure at all, as a normal government function?
3 - Fate of HBO
Have the courts followed HBO?
What is "quasi-adjudication among conflicting private claims to a valuable
How was this illustrated in Sangamon Valley TV?
What did the court rule?
Should Sierra Club change this?
§ 5.5.3 Bias and Prejudgment - 279
Remember the cases on bias of decisionmakers in adjudications?
Should these also apply to rulemaking?
Association of National Advertisers , Inc. v. Federal Trade Commission - 279
What was the agency regulating?
What was the Chairman's interest?
What did plaintiffs want to do?
What happened in Cinderella?
Did Cinderella control this case?
What is the standard for disqualifying the decisionmaker in a rulemaking?
How did the district court attempt to get around this so it could disqualify
What was the court basis for finding this?
Did the Cir court buy this?
How are the facts different in adjudications and rulemakings?
Why does this matter?
How did the court characterize the Commissioner's comments?
What is it going to take to disqualify an agency head from a rulemaking?
Notes and Questions - 284
Assuming that you cannot disqualify an agency director, how might you approach
the problem during rulemaking to get into the record?
4 - What was the issue in Mahoney v. Shinpoch and how can it be distinguished
§ 5.6 Findings and Reasons - 286
California Hotel & Motel Ass'n v. Industrial Welfare Comm'n - 286
What was at issue in this case?
What was the legal challenge?
Why is this a greater problem for states than for the federal agencies?
What are the six reasons the court said an agency should explain the basis
for a rule?
How is this handled for federal agencies?
What are other ways of handling this for states?
Notes and Questions - 290
1 - Some states allow agencies to promulgate rules with no reasons - what
are Prof. Frohnmayer's arguments for why this is a good thing?
What problem does this pose for judicial review?
2 - What does Automotive Parts tell us about what the court thinks is a "concise
general statement of basis and purpose"?
3 - How do the courts decide if the record satisfies the Automotive Part's
7 - What is a post hoc rationalization?
Is this generally permitted?
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