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Administrative Law Fall 2020
Working Course Map and Schedule

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Date Completed

Title

Learning Objectives

Assignment

Assessment

 

What is Administrative Law?

Learning Objectives for the Overall Course

Learn administrative law terminology

Learn key administrative law cases

Learn to recognize administrative law issues

Learn how dealing with agencies is different from litigation

Learn why agencies are the vehicles for carrying out politics

Learn how cost-benefit analysis is at the core of regulatory decisionmaking

Learn how the unintended consequences of regulation can outweigh the benefits of the regulation.

Learn the deep background on representative regulatory problems.

 

Video – Welcome to Administrative Law!

 

 

The Legal Framework for Administrative Law

Learn that administrative law has a limited constitutional mandate.

Learn that the political support for the administrative state is cyclical through time.

Learn that the states differ significantly in their support for regulation and the power of the state.

Learn what defines an independent agency.

Learn why independent agencies are seen as the headless 4th branch of government.

Learn that the Administrative Procedure Act (APA) establishes basic agency procedures.

Learn that agencies have both legislative and judicial functions.

Learn that the courts are deferential to agency decisions.

Learn that data collection and surveillance is a major function of government.

Learn that there are special limitations and procedures for suing agencies for torts.

 

 

Read chapter 1 of the text.

Video – The Scope and History of Administrative Law

PowerPoint – The Scope and History of Administrative Law

Video – What are Agencies and What do They Do?

PowerPoint – What are Agencies and What do They Do?

 Quiz – Chapter 1 and AEA.

 

The Non-Delegation Doctrine

Learn why agencies are seen as hybrids of all three branches of government.

Learn what the Non-Delegation Doctrine is.

Learn the standard that the Court adopted to analyze Delegation Doctrine questions.

Learn how the court now analyzes the delegation question.

 

 

 

 

Limits on Congressional Control of Agencies

Learn how to determine how Congress can control an agency.

Learn to distinguish proper Congressional oversight from unconstitutional control of an executive branch.

Learn what an earmark is and how they fit into the legislative process.

 

 

 

 

Chadha - The Legislative Veto and Separation of Powers

Learn about the Great Compromise and how is it embodied in the legislative process.

Learn when the House and Senate can act without presentment to the president.

Learn how the court evaluates a long-standing practice that is potentially unconstitutional.

Learn who is the real party at interest when the constitutionality of a law is challenged.

 

 

 

 

Presidential Control of Agencies – The Appointments Clause

Learn the source of the President’s domestic powers.

Learn the requirements of the Appointments Clause.

Learn the difference between principal and inferior officers.

Learn the Unitary Executive Theory

Learn the tension between the Unitary Executive Theory and the Appointments Clause

 Learn the basic rule for removing appointees.

 

 

 

White House Regulatory Review and Coordination

Learn the power and limits of executive orders.

Learn the basic structure of regulatory review through executive orders.

Learn the basic statutory structure for general regulatory review.

 

 

 

 

Introduction to Adjudications

Learn how adjudications different from Article III trials

Learn how ALJs different from Article III judges

Learn how the role of expertise shapes adjudication procedure.

Learn the basic procedural requirements for an adjudication.

 

 

 

 

Formal Adjudications

Learn the historical limitations of the APA in providing guidance for modern adjudications.

Learn how the requirement for a formal adjudication is triggered.

Learn why the courts are reticent to order formal adjudications.

Learn that there is no bright line between the process afforded and the complexity in formal and informal adjudications.

 

 

 

 

Ex Parte Communications in Adjudications

Learn why the rules on ex parte communications are different for adjudications than for Article III trials.

Learn when agency decisionmakers are allowed to consult with other persons in the agency.

Learn how separation of functions helps reduce bias in agency proceedings.

 

 

 

 

Licensing and Permitting

Learn why it is more cost effective to use licensing and permitting rather allowing an activity until the agency can prove it is violating the law.

Learn why the standards for initial licensing different from those for license revocation.

Learn the APA standards for due process for license revocation.

Learn the Louisiana standard for license revocation.

 

 

 

 

Introduction to Due Process

Learn the difference between substantive and procedural due process.

Learn the history of procedural due process.

 

 

 

 

The New Property

Learn how due process rights evolved from rights and privileges to the new property.

Learn the predicates for a due process hearing.

Learn the limits on the right to contest governmental postings of potentially defamatory information.

Learn why hearing can be important for clients.

 

 

 

 

Prisons as Administrative Institutions

Learn why prisons are administrative institutions, not criminal law institutions.

Learn why liberty itself is the most important liberty interest.

Learn why there is a delicate balance between giving prisoners too many rights and only the bare constitutional minimum.

Learn why prison litigation is both very important and mostly frivolous.

 

 

 

 

Mathews and the Constitutional Modern World

Learn how the status of the affected persons can change the nature of the due process needed for fundamental fairness

Learn how increasing due process rights can have unintended consequences in a program with limited resources

Learn the analysis to determine if there must be a hearing before an agency can act.

Learn the implications of making due process rights a cost-benefit analysis.

 

 

 

 

Bias in Administrative Hearings

Learn the limits on challenging agency decisionmaking on bias.

Learn how the Doctrine of Necessity reflects the problem of disqualifying agencies for bias.

Learn the limits of congressional meddling in agency practice.

Learn the allowable congressional casework.

 

 

 

 

Louisiana Adjudications and the Department of Administrative Law

Learn how the legislature can fundamentally change the powers of an agency.

Learn the pros and cons of central panel ALJ decisionmaking.

Learn how the DAL creates a bias against regulation in Louisiana.

Learn why the Wooley case ultimately leaves State Farm without a clear answer.

 

 

 

 

Summary Proceedings in Louisiana - The Bonvillian Cases

Learn the limits on using mandamus for force agency actions.

Learn how declaratory judgments can be used to resolve agency conflicts.

Learn how Bonvillian resolves Wooley in a way that undermines the core Louisiana Supreme Court premise behind Wooley.

 

 

 

 

Introduction to Rulemaking

 

Learn the definition of a rule

Learn how rulemaking simplifies adjudications

Learn the policy reasons for making rules

Learn when you do not need to use notice and comment

Learn the basics of formal rulemaking

 

 

 

 

The Procedures of Notice-and-Comment Rulemaking

Learn the basic requirements for notice and comment rulemaking.

Learn when you can supplement the record for rulemaking.

Learn how to manage ex parte contacts in rulemaking.

Learn that the statutory framework for rulemaking preempts additional judicial procedural requirements.

 

 

 

 

Cost Benefit Analysis in Rulemaking

Learn the basics of cost benefit analysis.

Learn the precautionary principle.

Learn the risk of unintended consequences.

Learn the impact of unfunded mandates.

Learn the costs of failed regulation.

 

 

 

 

Standing - Jurisdiction and Injury

Learn the difference between jurisdiction and standing

Learn the theories of standing and how they are used in adlaw cases

Learn the difficulties of assessing probabilistic injuries

Learn the special nature of procedural injuries

 

 

 

 

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) - Standing

Learn the regulatory dilemmas posed by climate change

Learn the agency duties when petitioned for a rulemaking.

Learn the distinction between injury to all and particularized injury.

Learn about standard for redressability for cases without simple solutions.

Learn what the agency might have done to avoid this lawsuit.

 

 

 

 

Standing - Jurisdiction and Injury

Learn the difference between jurisdiction and standing

Learn the theories of standing and how they are used in adlaw cases

Learn the difficulties of assessing probabilistic injuries

Learn the special nature of procedural injuries

 

 

 

 

Access to Judicial Review and Finality

Learn how Congress can limit judicial review of agency actions.

Learn that judicial review is favored but will be limited based Congressional intent.

Learn that even if review will be highly deferential, the agency still must support its decisionmaking in the record.

Learn how to argue whether an agency action is final and thus reviewable.

Learn why failing to exhaust administrative remedies before going to court is a fatal error.

Learn when APA exhaustion applies and its limits.

Learn that if the APA does apply, common law exhaustion is much stricter.

Learn what issue exhaustion is and when it might be waived by the court.

 

 

 

 

Ripeness

Learn that ripeness can be hard to distinguish from finality.

Learn that ripeness often depends on whether there is an injury.

Learn the equitable factors that are reviewed in an injunction proceeding.

Learn that exhaustion is not required if the agency is acting beyond its statutory or constitutional authority.

Learn that the even if the issue is ripe, the court may decide to give the agency primary jurisdiction if the rights of more than the single litigant are at issue.

 

 

 

 

Introduction to Judicial Review

Learn that in theory the court defers to the agency unless the law is clear.

Learn that the courts can choose their standard after they decide whether they are going to defer to the agency.

Learn that this all argumentation, there are no bright lines.

 

 

 

 

Judicial Deference to Agency Legal Interpretations after Chevron

Learn when an agency may use a rule to reverse a judicial decision

Learn how the courts (theoretically) use the amount of process behind an agency ruling to determine the level of deference to accord the agency.

Learn the standards for deference when the agency is interpreting its own legislative rules.

Learn how Barnhart revitalizes Skidmore.

Learn how you should argue to the court to increase your chance of getting Chevron deference.

 

 

 

 

Judicial Review of Facts

Learn that Congress sets the standard of review for agency review of facts.

Learn the limits on an agency ability to ignore the findings of an ALJ.

 

 

 

 

Judicial Review of Facts - Arbitrary and Capricious Review

Learn how arbitrary and capricious review has the same practical effect as substantial evidence review.

Learn how arbitrary and capricious review has become a review of the adequacy of the record supporting the decision.

Learn how the courts have turned record review into “hard look” review.

 

 

 

 

Judicial Review – Procedural Issues

Learn that there is a limited period for facial challenges to regulations.

Learn that you use a petition for rulemaking to restart the clock on challenging a regulation.

Learn that the agency is not bound by bad advice, but cannot punish you for relying on it.

Learn the rules for collateral estoppel.

 

 

 

 

Physical Searches by Agencies

Learn the limits of the 4th Amendment.

Learn when a warrantless search can be reasonable.

Learn the difference between a probable cause warrant and an area warrant.

Learn the standards for a pervasively regulated business.

Learn how the expectation of privacy affects warrant requirements.

 

 

 

 

Data Collection by Agencies

Learn the difference between first party and third party reporting.

Learn when a client can claim 4th and 5th Amendment protections and when these are not available.

Learn about the legal consequences of giving information to third parties.

Learn the exceptions to the loss of an expectation of privacy in information given to third parties.

Learn the all-pervasive nature of administrative searches.

 

 

 

 

FOIA and Open Meetings

Learn the policy rationales for open records and open meetings laws.

Learn the basic structure of FOIA.

Learn how the government handles requests for secret information.

Learn how the Privacy Act and FOIA interact.

Learn what is necessary to assure that a record about a private party will not be released under FOIA.

 

 

 

 

Federal Tort Claims Act

Learn how the Federal Tort Claims Act (FTCA) creates a limited exception to sovereign immunity to allow administrative compensation for tort claims.

Learn the rationale for the exemptions to the FTCA.

Learn how the discretionary function exception fits with judicial deference to agencies and the Mathews case.

Learn what steps must be satisfied to get jurisdiction to appeal of an administrative determination under the FTCA.

 

 

 

 

42 USC 1983

Learn the extent of qualified immunity.

Learn how 42 USC 1983 qualified immunity differs from the discretionary function exception.

Learn why qualified immunity is controversial.

 

 

 

LA Tort Claims Act

Learn how the absence of sovereign immunity in Louisiana changes the nature of the LA-TCA.

Learn how the courts construe the LA-TCA in light of the FTCA.

Learn why it is hard to collect a judgment against Louisiana political entities.

 

 

 

 

Flood Law

Learn how Flood Control Act 702 immunity limits federal tort claims.

Learn why the Katrina Levee Breach Cases failed.

Learn how takings law limits FTCA immunity.

Learn why the federal government has no duty to provide flood protection.