Office hours: My office is Room 432, 715 Broadway; Telephone: My office hours are Tuesdays, 1:30-3:00, or by appointment.

Transcription

1 THE POLITICS OF ADMINISTRATIVE LAW Professor Harrington Politics V Spring Office Hours: Tues. 1:30-3:00 This course is about the law of administration and the politics of regulation that it shapes. Administrative law is a body of law governing the ways state institutions and regulatory agencies make, implement and enforce policy. Although in public discourse we tend to hear more about conflicts over constitutional decision making, we daily interact with people who interpret, make and in some cases are even governed by administrative law. We are also increasingly finding that traditional administrative law issues involve constitutional claims as well (e.g., hiring and firing of government employees, the provision of social welfare benefits, implementation of deregulation policies, licensing nuclear waste dumps). In this class we will examine the legal ideology of administrative doctrine and processes. In particular, we will focus on the political, social and economic disputes that shape and are shaped by administrative law. We will cover classic debates such as; the historical origins of regulation, the legal philosophy of administrative regulation, the relationship between courts and agencies, and the political and social conflicts surrounding regulatory politics. Reading assignments are listed below in topical order. Specific dates for preparation will be announced in class. In order to make this experience worthwhile, you should read all of the assigned materials before each class and be prepared (with notes and questions) to discuss the main issues raised in the readings. Some of the required readings marked below with ** can be purchased at Unique Copy Center. The other required readings are for sale at the NYU Bookstore. Recommended readings are also available at the NYU Bookstore as well. A few ed readings are on reserve at Bobst Library. Required work: Participation in discussion is essential and will be one factor in student evaluation. In addition, each student is required to: take the mid-term exam (25%); write a page paper (25%); and take the comprehensive final exam (50%). We will discuss paper topics and the format of the two exams in class. Office hours: My office is Room 432, 715 Broadway; Telephone: My office hours are Tuesdays, 1:30-3:00, or by appointment.

2 ASSIGNED READINGS Lief H. Carter and Christine B. Harrington (1991) Administrative Law and Politics: Cases and Comments. 2d edition. HarperCollins. James Weinstein (1968) The Corporate Ideal in the Liberal State. Beacon Press. Ronen Shamir (1995) Managing Legal Uncertainty: Elite Lawyers in the New Deal. Durham: Duke University Press. Michael W. McCann (1986) Taking Reform Seriously. Cornell University Press SUPPLEMENTAL READINGS, see ** below. RECOMMENDED BOOKS Martha Derthick and Paul J. Quirk (1985) The Politics of Deregulation. Brookings. Richard A. Harris and Sidney M. Milkis (1989) The Politics of Regulatory Change. Oxford University Press. Martin Shapiro (1988) Who Guards the Guardians? University of Georgia Press. Stephen Skowronek (1982) Building a New American State: The Expansion of National Administrative Capacities, Cambridge University Press. PART I: THE LEGAL CONSTRUCTION OF ADMINISTRATIVE POLITICS 1. Introduction to the Study of Law and Regulatory Politics Carter and Harrington, chapter 1 Shapiro, chapter 1 2. Corporate Capitalism and the Interventionist State A. Political Economy and Administrative Law 2

3 Weinstein, The Corporate Ideal in the Liberal State, Shapiro, chapter 2 Wiebe, The Search for Order, Reserve at Bobst Kolko, "The Foundations of the Political Economy ," Reserve at Bobst B. Lawyers and Administrative Law Practice Carter and Harrington, pp Ronen Shamir (1995) Managing Legal Uncertainty: Elite Lawyers in the New Deal. Durham: Duke University Press. 3. Administrative Law in the Positive State: Due Process as a Policy Response Carter and Harrington, pp Morgan V. U.S. (1938) **Reich, "The New Property" Goldberg v. Kelly (1970) Mathews v. Eldridge (1976) 4. The Crisis of Classical Legal Theory and the Rise of Administrative Law in the Regulatory State A. Legal Formalism and the Public Right Doctrine Carter and Harrington, pp ** Klare, "Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, " Munn v. Illinois (1877) Lochner v. New York (1905) NLRB v. Jones & Laughlin Steel Corp. (1937) B. Administrative Legitimacy: the Delegation Doctrine 3

4 Carter and Harrington, pp C. Pluralism and the Administrative State McCann, Taking Rights Seriously: Perepectives on Public Interest Liberalism. Harris and Milkis, chapters 1-3 MID-TERM EXAM March 6 (week 7) 1. Statutory Authority PART II: LEGAL DEVICES OF THE MODERN STATE Carter and Harrington, Appendix B pp and pp Administrative Procedure Act, 1946 NAACP et.al. v. Federal Power Commission (1976) 2. The Role of Courts in Statutory Interpretation Carter and Harrington, pp Industrial Union Department, AFL-CIO v. American Petroleum Institute (1980) American Textile Manufacturers' Institute v. Donovan (1981) Chevron v. Natural Resource Defense Council, Inc. (1984) **Rust v. Sullivan (1991) 3. Congressional and Executive Control Agencies Carter and Harrington, pp INS v. Chadha (1983) Bowsher v. Synar (1986) 4. Agency Information and Investigation 4

5 Carter and Harrington, chapter 4 Wyman v. James (1971) Marshall v. Barlow's Inc. (1978) INS v. Lopez-Mendoza (1984) Dow Chemical Co. v. U.S. (1986) Department of Air Force v. Rose (1976) Taxation with Representation Fund v. IRS (1981) NRC v. Common Cause (1982) 5. Informality and Formality in Administrative Law Carter and Harrington, chapter 5 Bi-Metallic Investment Co. v. State BD of Equalization of Colorado (1915) BD of Curators of the University of MO et al. v. Horowitz (1978) 6. Elements of a Formal Hearing Carter and Harrington, chapter 6 Marathon Oil Co. v. EPA (1977) Gibson v. Berryhill (1973) Walters v. National Association of Radiation Survivors (1985) Cinderella Career and Finishing Schools, Inc. v. FTC U.S.C.A., D.C. Cir. (1970) 7. Ambiguities in Rulemaking Procedures Carter and Harrington, chapter 7 U.S. v. Florida East Coast Railway, Inc. (1973) Natural Resource Defense Council v. Vermont Yankee Nuclear Power Corp. D.C. Cir. (1976) Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. (1978) Motor Vehicle Manufactures Assn. v. State Farm Mutual Automobile Ins. Co. (1983) 8. Enforcement of Administrative Policy Carter and Harrington, chapter 8 5

6 9. Judicial Review Environmental Defense Fund,Ins. v. Ruckelshaus U.S.C.A., D.C. Cir. (1971) Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc. and Natural Resources Defense Council (1987) Derthick and Quirk, chapters 1-3 Harris and Milkis, chapter 4 Carter and Harrington, chapter 9 Shapiro, chapter 3 A. Access to Judicial Review 1. Ripeness 2. Standing B. Scope of Judicial Review Abbott Laboratories, Inc. v. Gardner (1967) Association of Data Processing Services Organization v. Camp (1970) U.S. v. SCRAP (1973) Duke Power Co. v. Carolina Environmental Study Group (1978) Citizens to Preserve Overton Park v. Volpe (1971) Scenic Hudson Preservation Conf. v. EPC (I), 2d Cir. (1965) Scenic Hudson Preservation Conf. v. EPC (II), 2d Cir. (1971) Heckler v. Chaney (1985) Universal Camera Corp. v. NLRB (1951) NLRB v. Hearst Publications, Inc. (1944) PART III: PRACTICAL PROBLEMS IN ADMINISTRATIVE LAW 6

7 1. Liability of the State and Official Legal Wrongs Carter and Harrington, chapter 10 Indian Towing Co., Inc. v. U.S. (1955) Allen v. U.S. 10th Cir. (1987) DeShaney v. Winnebago County Department of Social Services (1989) Butz v. Economou (1978) 2. The Law of Public Employment Carter and Harrington, chapter, 12 Perry et al. v. Sindermann (1972) Bishop v. Wood et al. (1976) Cleveland BD of ED v. Loudermill (1985) National Treasury Employees Union v. Von Raab (1989) Washington v. Davis (1976) Martin v. Wilks (1989) PART IV: EVALUATING ADMINISTRATIVE LAW 1. Law in Administrative Politics: Transforming the Regulatory State Carter and Harrington, chapter 14 Shapiro, chapters 4-7 Derthick and Quirk, chapters 5-7 Harris and Milkis, chapter 5-7 7

8 LAW AND ADMINISTRATIVE REGULATION Professor Harrington Politics V Fall Reich, "The New Property" Supplemental Readings 2. Klare, "Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, " 3. Rust v. Sullivan (1991)

9 LAW AND ADMINISTRATIVE REGULATION Professor Harrington Politics V Fall 1992 Reserve at Bobst 1. Wiebe, THE SEARCH FOR ORDER. 2. Kolko, "The Foundations of the Political Economy "

10 Law and Administrative Regulation SUPPLEMENTAL READINGS Professor Christine B. Harrington Department of Politics New York University