Archives for Spring 2017

March 27




Finish Chapter 6. Read carefully and note how final agency action and ripeness are often just different ways of arguing the same facts.


Study Guide: Access to Judicial Review and Finality

Study Guide: Ripeness and Wrap-up

March 20


The Powell Memorandum –

While this is from 1971, it is in the news because of the beginnings of the Gorsuch hearings. Two months before being nominated to the court, Lewis Powell wrote this confidential memo on how the right could capture the courts and public opinion.


Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) – the global warming case. Read paragraphs 23-85. This is the standing material referred to in the text. We are going to look carefully at this case and climate change as the critical regulatory dilemma of our time. We will read more of the case when we are reading Chapter 7.



Study Guide: Mass v EPA – Standing

Slides: Mass v EPA – Standing

Study Guide: Standing – Part- II

Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) – for reference


March 15


CBO Scoring of Trumpcare 1.0

Obamacare revision would reduce insured numbers by 24 million


Evaluating risk: IARC Monographs Volume 112: evaluation of five organophosphate insecticides and herbicides

Clapper v. Amnesty International USA, 133 S.Ct. 1138 (2013) – Edited, reformatted, and rearranged version for class discussion.

Study questions based on the edited version of the case. 

Read carefully. Now that we are done with the structural part of the course, we are going to read some cases very deeply. This is not casebook blurb stuff, we want to dig in and figure out what the court is doing.



March 13


Hospitals weigh in on ACA replacement

Keep a lookout for the CBO scoring of the Trumpcare bill.


Bonvillian Cases: Bonvillian v. Dep’t of Insurance, 906 So.2d 596 (La.App. Cir.1 2005) and after remand and appeal – Bonvillian, round II.

Chapter 6 to Other Widely Shared Injuries, p. 226. This should be quick as it should just recap what you learned in constitutional law.


Study Guide: The Bonvillian Cases

Slides: The Bonvillian Cases

Study Guide: Standing Introduction

Slides: Introduction to Standing

Practice materials for summary proceedings

Filetti, Garrett. “22nd Time’s the Charm: The 2015 Revisions to Summary Judgment in Louisiana.” La. L. Rev. 77 (2016): 479-585.

Code sections for Declaratory Judgment in LA

CCP 1871 Declaratory judgments; scope
CCP 1872 Interested parties may obtain declaration of rights, status, or other legal relations
CCP 1873 Construction of contract
CCP 1874 Interested person may obtain declaration of rights; purpose
CCP 1875 Powers enumerated not exclusive
CCP 1876 Court may refuse declaratory judgment
CCP 1877 Review of judgments and decrees
CCP 1878 Supplemental relief; expedited hearing for constitutional determination; effect of pendency of other proceedings
CCP 1879 Trial and determination of issue of fact
CCP 1880 Parties
CCP 1881 Construction
CCP 1882 Provisions independent and severable
CCP 1883 Uniformity of interpretation

March 8


LA Task force on reducing incarceration to adopt final recommendations March 16

Insurance Commissioner Leaving Office… Without Indictment (older story)

“The last time a Louisiana insurance commissioner left office and did not ultimately go to prison was in 1972, with Dudley A. Guglielmo. Now, 34 years later, Robert Wooley is accomplishing that feat again, stepping down from the post that he has held for the past five years, effective February 15th — leaving before the end of his term.”


Wooley v. State Farm Fire and Cas. Ins. Co., 893 So.2d 746 (La. 2005)

We are going to spend a class on this case because it goes to heart of a major problem with administrative law in Louisiana. Be sure to look at the study guide as you read the case. (Heads up – The opinion, through paragraph 47, lays out the lower court’s ruling. The lower court ruling is a bit disjoint, so do not expect deep legal reasoning it. Try to identify the facts that the district court based its ruling on.)


Study Guide: Louisiana Adjudications and the Wooley Case

Slides: Wooley and the DAL

February 22


OMB material is now on the White House WWW site


Carry over readings from last class

Chapter 4 to b. Liberty and Correctional Facilities.


Heerden v. Bd. of Sup’rs of Louisiana State Univ. & Agr. & Mech. Coll., No. CIV.A. 10-155-JJB-CN, 2011 WL 320921 (M.D. La. Jan. 28, 2011)

We are going to look at pages 4-6 in class.

The Flyer from Paul v. Davis, 424 U.S. 693 (1976)

Study Guide: The New Property

Slides: Introduction to Due Process and Goldberg

Study Guide: Goldberg (based on slides)


February 20


The ongoing controversy over the travel ban


Some short readings on Cost Benefit Analysis

2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act

This is probably the most controversial document in the regulatory world. Just look at the tables in chapter 1.

Saving Lives: A Review of the Record

This is a great article on problems with CBA. Read 13-18  and look hard at tables 1-3 at the end. (AED – automatic external defibrillator)

Cost benefit of armed guards in schools

Example of a proposed high cost response to an emotional risk.

2016 dog bite fatalities

For comparison, at least 3 times as many children are killed on average each by dog bites, yet it is nearly impossible to get many communities to pass regulations to address the risk.

Chapter 4 – Due Process

Chapter 4 to to: 1. Modern Concept of ‘‘Property’’

Read paragraphs 11-30 in Goldberg v. Kelly


Slides: Executive Review of Rulemaking

 Slides: Theories of Regulation and Critiques of Regulatory Policy

Study Guide: Introduction to Due Process

Optional reading

Hahn, Robert W., and Paul C. Tetlock. “Has economic analysis improved regulatory decisions?.” The Journal of Economic Perspectives 22, no. 1 (2008): 67-84.

February 15


Sharp division among Republicans, tough questions after second day of special session

Does Louisiana depend on the kindness of strangers?


Carry over materials on Vermont Yankee

Nuclear Power Basics

Perez v. Mortgage Bankers Association, No. 13-1041 (2015) – Just read section II, A & B, which discuss reiterating the limits of Vermont Yankee on judicial additions to APA procedure.

Read Chapter 5, 4. The “Logical Outgrowth” Test to H. Other Administratively or Statutorily Required Procedures—Hybrid Rulemaking.

Study Guide – The Procedures of Notice and Comment Rulemaking

Procedures of Notice and Comment Rulemaking

Review the Reg Map for Informal Rulemaking for a wrap-up of notice and comment rulemaking.

Read Chapter 5, H. Other Administratively or Statutorily Required Procedures—Hybrid Rulemaking to the end. This is narrative description of procedures and statutes governing rulemaking, not an analytical section. I will do a brief review of this material.

Study Guide – Executive and Congressional Review of Rulemaking

Slides – Executive Review of Rulemaking


February 13



Trump Jan 2017 EO kept on hold


Read from b. General Statements of Policy to 4. The “Logical Outgrowth” Test. You can skim the section in this assignment on Formal Rulemaking.

Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 98 S. Ct. 1197, 435 U.S. 519 (1978)

Study Guide for Vermont Yankee

Use this guide as you read the case to make sure you work through the issues. We are going to read this case carefully as part of our discussion about how the court and the agency handle a wicked regulatory problem: the disposal of nuclear waste.


Review guide – Introduction to Rulemaking II

Slides – Policy Statements and Agency Procedures

553 – The Procedures for Notice and Comment

 Reg Map for Informal Rulemaking – pdf

Nuclear Power Basics


NRC fast track program for new reactors – the operating and construction permit process has now been consolidated, to reduce the opportunities for administrative delay.

A future for nuclear energy: pebble bed reactors – tech study for those who are interested.

Gas Makes Nuclear Power Radioactive – current economics of nuclear power.

February 8


Oral arguement in TRO on immigration order:

Key Cases

Dames & Moore v. Regan

Youngstown Sheet & Tube Company v. Sawyer


Read chapter 5 to C. The Procedures for Formal Rulemaking. Work through the examples carefully so we can discuss them in class.

Study Guide: Introduction to Rulemaking Part I


Obama’s executive order on immigration.

This was found to be a rule that needed notice and comment by the lower courts, and the USSC split 4-4, leaving the lower court decision in place.


Rules in Louisiana:  RS 49:951

Reg Map for Informal Rulemaking – pdf

A Handy “Rulemaking Versus Guidance” Checklist For Federal Agency Counsel

What does a rule look like?

Clean Water Rule: Definition of ‘‘Waters of the United States’’; Proposed Rule

Clean Water Rule: Definition of ‘‘Waters of the United States’’; Final Rule

What does a guidance document look like?

Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act

Guidance to Federal Financial Assistance Recipients Regarding Title VI Prohibition Against National Origin Discrimination Affecting Limited English Proficient Persons

January 23

Study guides have been added.

Adlaw in the News (check back for breaking news)

Note that all of the Obama executive orders are now taken down:

White House – Executive Orders

Trump’s First Executive Order and Trump Executive Order On ACA: What It Won’t Do, What It Might Do, And When

Read these for class (it is only two pages). We will discuss it as an example of the power and limits of executive orders and I will give you some background on the ACA so you can appreciate the administrative law fights that are starting over dismantling and replacing it.

Priebus Memo Directing Agencies to Review All in Progress Rulemaking

This memo is the standard direction from a new administration to agencies to pause all in progress rulemaking except for rules necessary for urgent health and safety matters. It is a good statement of the limits on what a president can direct agencies to do.

Reading assignment

Chapter 2 to 4. Legislative Veto, p. 46. You can skim the through page 36 until you get to the Schor case at the bottom of p. 37. The earlier material deals with historical cases on the delegation doctrine. We will talk about these briefly, but only to develop the idea of an intelligible purpose. Schor sets out when adjudications can be delegated and when due process requires an Art III judge.

Guide: The Delegation Doctrine

Guide: Limits on Congressional Control of Agencies

Material for Class Discussion

Commodity Futures Trading Commn. v. Schor, 478 U.S. 833 (1986)

[1] “the extent to which the ‘essential attributes of judicial power’ are reserved to Article III courts, and

[2] conversely, the extent to which the non-Article III forum exercises the range of jurisdiction and powers normally vested only in Article III courts,

[3] the origins and importance of the right to be adjudicated, and

[4] the concerns that drove Congress to depart from the requirements of Article III.

Would this include locking someone up?

The Appointments Clause – Art II, sec. 2, cl 2

“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… all other [principal] Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law:

but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

Ineligibility Clause

Prohibit any Member of Congress, while serving in Congress, from being appointed ‘‘to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been [i]ncreased during such time,’’ and they provide that ‘‘no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.’’ U.S. Const. art. I, §6, cl. 2.