Administrative Law LAW Syllabus Spring Professor Jennifer L. Mascott

Transcription

1 Administrative Law LAW Syllabus Spring 2018 Professor Jennifer L. Mascott Phone: (703) Office: Hazel 430E Office Hours: I will be available throughout the semester for meetings with students upon request. In addition, I encourage students to contact me by or telephone. Students also may post questions on TWEN. I reserve the right to post to TWEN any substantive student questions ed to me (with the student s name redacted) that I feel would benefit the entire class. In particular, I am most likely to post to TWEN student questions that arise close to final exam time, to ensure that all students have access to the same substantive answers regarding content that might be covered on the exam. Course Objectives: By the end of this course, students should have a basic understanding of separation-of-powers issues related to federal administrative agencies position within our threebranch governmental structure. This course also consists of the study of the administrative process of government within both executive and independent agencies. The federal Administrative Procedure Act will be emphasized, with particular attention devoted to agency adjudicative and rulemaking powers and statutory requirements for acquiring judicial review of agency action. Constitutional topics include separation of powers, Article II appointments and removal requirements, nondelegation principles, due process, and standing/mootness/ripeness issues related to acquiring judicial review of agency action. Class Schedule: Mondays & Wednesdays, 6:00 7:15 p.m. Required Materials: Gary Lawson, Federal Administrative Law, 7th Edition, West, 2016 ( Lawson ). A short course pack of supplemental readings will be available on TWEN. Most of the supplemental materials are from the casebook author s 2017 online supplement to the casebook. Examination/Grades: Grades will be based primarily on the final examination, which is scheduled for Friday, May 4, at 6:00 p.m. The exam will consist primarily of essay questions; there may also be a small section consisting of short answer questions. The exam will be open book. 1

2 Course Participation/Grades: Although grades will be based primarily on the final examination, class participation may also impact a student s final grade. Based on the quality of class participation, I reserve the right to adjust a student s final grade up or down by one step (e.g., from B to B+ or A to A- ). All students are expected to provide high-quality participation in accordance with an on-deck system that I will implement upon the end of the add/drop period based on the class seating chart. Until that time, all students will be on deck. Class attendance also is required. Students missing more than 20% of class sessions, for any reason, will not receive credit for the course in accordance with law school policy. Students missing more than 25% of any particular session of class are counted as absent on that date. Reading Assignments: Following are the reading assignments for class. They are described topically in the order in which they will be covered. At the end of each lecture, I will announce in class the reading for the next lecture. This information also will be posted on TWEN. The reading assignment for the first class is pages 1 46 in Lawson. Our discussion of this material may continue into the second class. I. Introduction A. Agencies: Their Origins, Forms, and Functions Lawson 1 72 B. Theories of Agency Behavior Lawson II. The Constitution and the Administrative State A. Concepts of Separated Powers Lawson B. Agencies and Article I Lawson ; 104 (starting with Panama Refining Co.) 123; C. Agencies and Article II 1. Appointment of Agency Officials Lawson ; TWEN Supplement at 4 2. Removal of Agency Officials Lawson ; TWEN Supplement at 5 D. Agencies and the Separation of Powers Lawson

3 III. Statutory Constraints on Agency Procedure A. Introduction: The Administrative Procedure Act ( APA ) Lawson B. Formal Rulemaking Lawson C. Formal Adjudication Lawson (the first paragraph in Part III.C); (the Chemical Waste Mgm t opinion) D. Informal Rulemaking 1. The Original Understanding Lawson The Vermont Yankee Saga Lawson The Notice of Proposed Rulemaking Lawson The Statement of Basis and Purpose Lawson Statutory Hybrid Rulemaking Lawson Exemptions from Rulemaking Procedures Lawson E. Informal Adjudication Lawson F. The Choice Between Rulemaking and Adjudication Lawson IV. Scope of Review of Agency Action A. Introduction Lawson B. Review of Findings of Fact in Formal Proceedings 3

4 Lawson C. Review of Findings of Fact in Informal Proceedings Lawson D. Review of Agency Legal Conclusions 1. Theory and History Lawson (from The primary function... through the phrase, understand the past ); Theory and Current Practice Lawson When does Chevron Apply? Lawson ; (starting with In City of Arlington... ) How Clear is Clear? Lawson How Reasonable is Reasonable? Lawson ; TWEN Supplement at How far does this go? Lawson E. Review of Agency Discretion and Policymaking 1. Introduction & Review of Outcomes v. Review of Procedure Lawson Review of Decisionmaking Processes Lawson ; (Massachusetts v. EPA & Judulang v. Holder) 3. Substantive Review and Procedural Adequacy Lawson Defining the Record in Informal Proceedings Lawson Hard Look Review in Practice Lawson ; TWEN Supplement at

5 6. Abuse of Discretion Lawson 832 V. Constitutional Constraints on Agency Procedure A. Introduction & Due Process: An Overview Lawson B. LifeLibertyProperty Lawson C. Due Process of Law Lawson VI. Timing and Availability of Judicial Review A. Introduction & What & Where : Judicial Review of Federal Agency Action Lawson (just the carryover paragraph); B. When : The Timing of Judicial Review 1. Introduction & Exhaustion Lawson Finality Lawson Ripeness Lawson ; TWEN Supplement at 18 (final )-19 5