Examples & Explanations for Administrative Law / Edition 5

by William F. Funk

Overview

A favorite classroom prep tool of successful students that is often recommended by professors, the Examples & Explanations (E&E) series provides an alternative perspective to help you understand your casebook and in-class lectures. Each E&E offers hypothetical questions complemented by detailed explanations that allow you to test your knowledge of the topics in your courses and compare your own analysis.

Here’s why you need an E&E to help you study throughout the semester:

• Clear explanations of each class topic, in a conversational, funny style.
• Features hypotheticals similar to those presented in class, with corresponding analysis so you can use them during the semester to test your understanding, and again at exam time to help you review.
• It offers coverage that works with ALL the major casebooks, and suits any class on a given topic.

The Examples & Explanations series has been ranked the most popular study aid among law students because it is equally as helpful from the first day of class through the final exam.

Product Details

ISBN-13:	2901454850105
Publisher:	Wolters Kluwer Law & Business
Publication date:	10/22/2015
Series:	Examples & Explanations Series
Edition description:	Older Edition
Pages:	456
Product dimensions:	7.00(w) x 9.80(h) x 1.00(d)

Table of Contents

Preface to Sixth Edition xvii

Chapter 1 Introduction to Administrative Law 1

I Administrative Law-The Course 1

II Overview of me History of Administrative Law 2

III Overview of the Administrative Structure 5

A Agencies Generally 5

B Independent Regulatory Agencies 7

C Government Corporations 11

IV What Agencies Do and How They Do It 11

A What They Do 11

B How They Do It 13

V The Role of the Courts 15

VI States in the Federal Administrative Law System 18

VII State Administrative Law 20

VIII The Organization of This Book 22

Chapter 2 How Agencies Fit into Our System of Separated Powers 23

I Introduction 23

II Delegation Doctrine 28

A Legislative Powers 29

B Adjudicative Powers 35

III Different Branches' Roles 41

A Congress 41

1 Congressional Appointment 41

2 Legislative Membership on Administrative Bodies 44

3 Congressional Removal of Officers 45

4 Legislative Veto 46

5 Legislative Review and Oversight 49

B The President 52

1 Appointment 53

2 Removal 60

3 Supervision 65

a OMB/EO Review 66

1 Review Under E.O. 12866 66

2 Review Under the Information (Data) Quality Act 68

b Independent Regulatory Agencies 68

1 E.O. 12866 68

2 Information (Data) Quality Act 69

4 Line Item Veto 69

Chapter 3 Adjudication 71

I The Subject Matter of Adjudication 72

II Formal and Informal Adjudication 76

A Formal and Informal Adjudication in the States 84

III The APA Procedures for Adjudication 84

A Notice Requirements 85

B The Burden of Proof 85

C Rules of Evidence 86

D The Role of the ALJ 88

E The Course of the Proceeding 89

F The Role of the Agency 90

G Ex Parte Communications-5 U.S.C. § 557(d) 92

H Separation of Functions-5 U.S.C. § 554(d) 94

1 Formal Adjudication in the States 100

IV Procedures for Informal Adjudication 100

V Procedures Applicable to All Proceedings 101

VI Alternative Dispute Resolution (ADR) and Administrative Law 102

VII Licensing 103

Chapter 4 Due Process 107

I Is Due Process Required at All? 108

A History 109

B Modern Due Process 110

1 Modern Concept of "Property" 111

2 Modern Concept of "Liberty" 115

a Liberty and Reputation 115

b Liberty and Correctional Facilities 119

II What Process Is Due? 121

A Historically 121

B The Modern Rule 123

C Particular Requirements 131

1 The Need for an Impartial Judge 132

2 Ex Parte Communications 136

Chapter 5 Rulemaking 139

I The Nature of Rules 139

A "Rule" Under the APA 140

B Legislative and Nonlegislative Rules 143

C Rules v. Orders 144

II Beginning Rulemaking 146

III Rulemaking Procedures 148

A Rules Exempt from Section 553 150

1 The Military and Foreign Affairs Exemption 150

2 The Exemption for Matters Involving Agency Management or Personnel, Public Property, Loans, Grants, Benefits, and Contracts 152

B Rules Excepted from Section 553's Notice-and-Comment Requirements 154

1 Interpretative Rules, General Statements of Policy, and Procedural Rules 155

a Interpretative Rules 155

1 The Substantial Impact Test 156

2 The "Legally Binding" or "Force of Law" Test 157

a Whether in the absence of the rule there would not be an adequate basis for enforcement action or other agency action to confer benefits or ensure the performance of duties 157

b Whether the rule interprets a legal standard or whether it makes policy 159

c If the agency is interpreting a legislative rule, whether the claimed interpretative rule is consistent with the legislative rule it is supposedly interpreting 162

d Whether the agency contemporaneously indicated that it was issuing an interpretative rule 163

e Whether the person signing the agency document had the authority to bind the agency or make law 163

f Doubtful factors 164

g Conclusion 165

b General Statements of Policy 165

c Rules of Agency Organization, Procedure, or Practice 171

1 Substantial Impact Test 172

2 "Encoding a Substantive Value Judgment" Test 173

2 When the Agency Finds for Good Cause That Notice and Public Procedures Are Impracticable, Unnecessary, or Contrary to the Public Interest 174

C The Procedures for Formal Rulemaking 176

D The Procedures of Notice-and-Comment Rulemaking 180

1 The Notice 180

2 The Comment 182

3 The Final Rule 183

4 The "Logical Outgrowth" Test 184

E Procedures for Rules Not Subject to Formal Rulemaking or Notice-and-Comment Rulemaking 187

F Negotiated Rulemaking 188

G Constitutional and Other Judicially Created Procedural Requirements 190

1 Ex Parte Communications 192

2 Decision Makers' Bias or Prejudice 193

3 Undue Influence 195

H Other Administratively or Statutorily Required Procedures-Hybrid Rulemaking 197

1 Executive Orders 199

2 National Environmental Policy Act 202

3 Regulatory Flexibility Act 203

4 Unfunded Mandates Reform Act 204

5 The Paperwork Reduction Act 204

6 Congressional Review 205

7 Information Quality Act 206

8 Conclusion 206

Chapter 6 The Availability of Judicial Review 209

I Reviewability Generally 210

A Jurisdiction-Statutory Jurisdiction 210

B Jurisdiction-Standing 213

1 Constitutionally Required Standing 213

a Injury for Standing 215

1 Recreational, Aesthetic, or Environmental Injury 215

2 Risk as Injury 217

3 Fear as Injury 222

4 Procedural Injury 222

5 Informational Injury 223

6 Other Widely Shared Injuries 226

7 States as Plaintiffs 227

b Causation for Standing 227

1 Procedural Violations and Causation 228

2 Third-Party Actions and Causation 230

3 Contribution as Causation 232

c Redressability for Standing 232

1 Third-Party Actions and Redressability 232

2 Procedural Violations and Redressability 233

3 Partial Redress or Avoidance 234

2 Representational Standing 234

3 Prudential Standing 235

II Exceptions to Judicial Review Under the APA 236

A Statutory Preclusion 236

B Committed to Agency Discretion by Law 240

III Requirements for Judicial Review Under the APA 243

A Causes of Action and the Zone of Interests 243

B Agency Action 249

IV Problems of Timing 251

A Final Agency Action 252

B Exhaustion of Administrative Remedies 258

C Ripeness 265

V Primary Jurisdiction 272

Chapter 7 The Scope of Judicial Review 275

I Review of Questions of Law 276

A Statutory Interpretation and the Chevron Doctrine 277

B Interpretation of Rules 295

II Substantial Evidence Review 298

A When Does a Court Review for Substantial Evidence? 299

B What Does Substantial Evidence Mean? 299

C Substantial Evidence Review in Hybrid Rulemaking 308

III Arbitrary and Capricious Review 308

IV De Novo Review 318

V Review of Agency Action Unlawfully Withheld or Unreasonably Delayed 319

VI Remedies 323

VII Equitable Estoppel 325

VIII The Effect of Judicial Decisions 327

A Res Judicata and Collateral Estoppel 327

1 Against Parties Suing the Government 327

2 Against the Government 328

B Non-Acquiescence 329

C Nationwide Injunctions 330

Chapter 8 Government Acquisition of Private Information 333

I Introduction 333

II Legal Limits on Government Acquisition of Private Information-In General 334

III Administrative Inspections-Fourth Amendment Limits 336

IV Obtaining Documents and Testimony 342

A Reporting Requirements 342

1 Paperwork Reduction Act 343

2 Subpoenas 348

B Fourth Amendment Limits on Reporting Requirements and Subpoenas 350

C Fifth Amendment Limits on Reporting Requirements and Subpoenas 355

Chapter 9 Public Access to Government Information 361

I Introduction 361

II Freedom of Information Act 362

A In General 362

B Exemptions 370

Exemption 1 375

Exemption 2 376

Exemption 3 379

Exemption 4 382

Exemption 5 386

Exemption 6 389

Exemption 7 393

III Government in the Sunshine Act 398

IV Federal Advisory Committee Act 403

V The Privacy Act 410

A General Rule Against Disclosure 410

B Exceptions 411

C Other Functions 412

D Judicial Relief 412

E Summary 413

Table of Cases 417

Index 425