What is substantive review?
Why is it so contentious?
Can the courts substitute their judgment for that of the agency?
What are the court recourses if the agency refuses to change its ruling to suit the court?
What is the rationale for judicial deference to agencies?
What are the indications that congress wants to the courts to defer to agencies?
Why is a record essential to judicial review of agency action?
What are the APA requirements for a record for formal adjudications, formal rule making, informal adjudications, and informal rulemaking?
Why was this a problem in Overton Park v. Volpe and what did the court recommend that the district court do on remand?
How did the record change in SEC v. Chenery and why did this upset the plaintiff?
What did the court rule?
Outside of a few cases where the organic act provides for de novo review of agency findings of fact, what are the two usual standards for review?
What are the seven rules the courts seem to use in applying the substantial evidence rule?
How was the hearsay rule modified by Richardson v. Perales?
What do these rule tell the agency to do to avoid reversal?
What is the arbitrary and capricious test and what conlaw test does it resemble?
What do we mean when we talk about judicial review of unknowable facts?
Discuss Chevron and the Chevron two step.
Discuss the review of agency reasoning and how this was addressed in the key case of Motor Vehicle Manufacturers v. State Farm Automotive. (Hint, know what happened in this case.)
What did judge Bazelon say about the value of hard look review of mathematical and scientific evidence?
What are the ways the government can get private information?
What do In re FTC Line of Business Report Litigation and U of Pennsylvania v. EEOC tell us about government access to private data?
When does the Paperwork Reduction Act apply and what four things must the agency do to comply with the Act?
Discuss Oklahoma Press v. Walling and subpoenas.
What can you do if you get a subpoena?
When can you get in trouble by playing lawyer games with agency requests for documents?
What is an inspection and what are they used for?
Discuss Camara and See and area warrants and the situations when the courts have said you do not need one.
Why are warrants needed for OSHA inspections but not mine and auto junkyard inspections?
Why does licensing solve the warrant problem?
What does Albertson v. Subversive Activities Control Board tell us about self-incrimination?
What is covered by the FOIA?
What is an agency for FOIA?
What is the definition of a record?
Congress amended the FOIA in light of EPA v. Mink - what do the amendments allow the court to do that it could not do before?
The exemptions to the FOIA are very important. Know each and every one by statutory cite (i.e., (b)(2)), what it covers, and any special problems it poses.
How can fairness and political accountability conflict?
Why is a neutral decisionmaker important?
In what type of proceedings is this an issue?
What does sec. 556(b) of the APA provide?
What is the doctrine of necessity?
How are ALJs insulated from pressures to rule for the agency?
What are the three hats ALJs wear in SSI disability determinations?
Why must they do this?
Why is neutrality less important in rulemaking?
What is the legal standard for challenging neutrality in rulemaking?
When does the APA restrict ex parte contacts?
Discuss Portland Audubon Society v. The Endangered Species Committee.
Why is there no ex parte contact problem in informal rulemaking, when is there an exception to this principle, and what test did the court use to determine this in HBO v. FCC and then in ACT v. FCC?
What are the ex parte contacts issues with the White House and how were these resolved in Sierra Club v. Costle?
What is the Sunshine Act and when does it apply?
What are the exceptions to the Sunshine Act?
What is the definition of a meeting?
What has been the effect of the Sunshine Act on agency decisionmaking?
What is the Federal Advisory Committee Act, who does it apply to, and what are the exceptions?
What is the Ethics in Government Act?
What is the Regulatory Flexibility Act?
What is the Paperwork Reduction Act?
What is the Unfunded Mandates Act?
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