Legislation & Regulation (Section 2) Fall 2012 Professor Stephenson Wed-Fri 8:20-9:40, WCC 1010 SYLLABUS
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1 Legislation & Regulation (Section 2) Fall 2012 Professor Stephenson Wed-Fri 8:20-9:40, WCC 1010 Course Description: This course is an introduction to lawmaking in the modern administrative state. It will examine how Congress and administrative agencies adopt binding rules of law (statutes and regulations, respectively) and the way that implementing institutions courts and administrative agencies interpret and apply these laws. The course will consider the justifications for modern regulation, the structure of the modern administrative state, the incentives that influence the behavior of the various actors, and the legal rules that help to structure the relationships among Congress, the agencies, and the courts. The text for the course is MANNING & STEPHENSON EDS., LEGISLATION AND REGULATION (Foundation Press 2010). Part I: Legislation SYLLABUS A. The Legislative Process and Theories of Interpretation Wed., Sept. 5 th Introduction to Statutory Interpretation pp. 2-3 (introductory note), 19-28, and (United States v. Marshall, through end of note 4) Thurs., Sept. 6 th Text and Purpose pp (Riggs v. Palmer, Church of the Holy Trinity v. United States) Fri., Sept. 7 th Text and Purpose, cont d pp (United States v. Kirby, Public Citizen v. Department of Justice, through end of note 2) and (West Virginia University Hospitals v. Casey) Wed. Sept. 12 th Ordinary Meaning, Special Meaning, and Context pp (Nix v. Hedden), (Corning Glass Works v. Brennan), (notes 2 & 3 on Corning), and (Smith v. United States) Thurs., Sept 13 th The Legislative Process and Legislative History pp (introductory note) and (notes 1-4 after North Haven Bd or Educ. v. Bell, Blanchard v. Bergeron, Continental Can Co. v. Chicago Truck Drivers, through end of note 3). 1
2 Fri., Sept. 14 th The Legislative Process and Legislative History, cont d pp (remaining notes on Blanchard and Continental Can, Exxon Mobil v. Allapattah), re-skim (Corning Glass), (note 1 on Corning) B. Canons of Construction Wed., Sept. 19 th Semantic Canons pp (McBoyle v. United States) and (Gustafson v. Alloyd) Thurs., Sept. 20 th Semantic Canons, cont d pp (Silvers v. Sony Pictures) and (People v. Smith, Circuit City Stores v. Adams) Fri., Sept. 21 st Substantive Canons: Avoiding Constitutional Questions pp (NLRB v. Catholic Bishop of Chicago) Mon., Sept. 24 th (Austin North, 3:30-4:50) Substantive Canons: State Sovereignty pp (Gregory v. Ashcroft) [NO CLASS WEDNESDAY, SEPT. 26 th YOM KIPPUR] Thurs., Sept. 27 th Substantive Canons: Preemption of State Law pp (Rice v. Santa Fe Elevator, Cippollone v. Liggett Group) Fri., Sept. 28 th Scope and Application of Substantive Canons pp (Spector v. Norwegian Cruise Lines) Part II: Regulation A. The Constitutional Position of Administrative Agencies Wed., Oct. 3 rd The Administrative State and the Delegation Problem pp (introductory note), (J.W. Hampton, Jr. Co. v. United States), (notes 4 & 5 after the Constitution excerpt), (introductory note before Schechter Poultry), and (note 3 after Schechter Poultry, Whitman v. American Trucking Ass ns, Inc.) 2
3 Thurs., Oct. 4 th The Administrative State and the Delegation Problem, cont d pp (Industrial Union Department, AFL-CIO v. American Petroleum Institute) Fri., Oct. 5 th Congressional Control of Agencies: The Legislative Veto pp (INS v. Chadha) and (section on other forms of congressional control) [NO 1L CLASSES OCT. 10.] Thurs., Oct. 11 th Appointment and Removal of Agency Officials pp (introductory note) and (Myers v. United States, Humphrey s Executor v. United States) Fri., Oct. 12 th Appointment and Removal of Agency Officials, cont d pp (Morrison v. Olson) Mon, Oct. 15 th (Austin North, 3:30-4:50) Presidential Oversight of the Administration pp (section on presidential control of agencies) B. The Administrative Rulemaking Process Wed., Oct. 17 th The Administrative Procedure Act and the Forms of Agency Action pp (United States v. Florida East Coast Railway) Also skim pp , (sections of the Administrative Procedure Act) Thurs., Oct. 18 th Notice & Comment Rulemaking pp. 604 (introductory note), (Chocolate Manufacturers Ass n v. Block) [NO CLASS FRIDAY, OCT. 19 th ] Wed., Oct. 24 th Notice & Comment Rulemaking, cont d pp (United States v. Nova Scotia Food Products Corp.) 3
4 Thurs., Oct. 25 th Alternatives to Notice & Comment Rulemaking: Adjudication pp (SEC v. Chenery Corp., Bell Aerospace v. NLRB, NLRB v. Bell Aerospace) Fri., Oct. 26 th Alternatives to Notice & Comment Rulemaking: Guidance Documents pp (PG&E v. FPC, Chamber of Commerce v. Dep t of Labor) Wed., Oct. 31st Alternatives to Notice & Comment Rulemaking: Interpretive Rules pp (AMC v. MSHA, Hoctor v. Dep t of Agriculture) C. Judicial Review of Agency Action Thurs., Nov. 1 st Introduction to Judicial Review of Agency Decisions pp (Ethyl Corp. v. EPA) Fri., Nov. 2 nd Judicial (Non-)Regulation of Agency Procedures pp (Vermont Yankee Nuclear Power Corp. v. NRDC) Wed., Nov. 7 th Hard Look Review pp (Motor Vehicles Manufacturers Ass n v. State Farm) Part III: Legal Interpretation in the Administrative State Thurs., Nov. 8 th Judicial Review of Agency Statutory Interpretation: Early Cases pp (NLRB v. Hearst, Packard v. NLRB, Skidmore v. Swift & Co.) Fri., Nov. 9 th Judicial Review of Agency Statutory Interpretation: The Modern Framework pp (Chevron v. NRDC) Wed., Nov. 14 th Deference and Textual Interpretation: Finding Ambiguity pp (MCI v. AT&T) 4
5 Thurs., Nov. 15 th Deference, Semantic Canons and Terms of Art pp (Babbitt v. Sweet Home) and (note on Chevron and legislative history) Fri., Nov. 16 th Deference and Structural/Purposive Interpretation pp (FDA v. Brown & Williamson Tobacco Corp.) [NO CLASSES NOV THANKSGIVING BREAK] Wed., Nov. 28 th Deference and Substantive Canons: Constitutional Avoidance pp (DeBartolo v. Fla. Gulf Coast Building & Trades, Rust v. Sullivan) Thurs., Nov. 29 th Deference and Substantive Canons: State Autonomy pp (SWANCC v. Army Corps of Engineers, Smiley v. Citibank) Fri., Nov. 30 th Limits on Chevron s Domain pp (United States v. Mead Corp.) Tues., Dec. 4 th Flex Class/Review 5
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