Exam Prep and Info

I will post information about the exam, Q&A from students, and any additional study materials here. Remember, the exam is closed book and materials.


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November 20

News

Court enjoins DOJ rule in conflict with the Immigration Act

The Immigration and Naturalization Act (“INA”) “deals with one of the oldest and most important themes in our Nation’s history: welcoming homeless refugees to our shores,” and it “give[s] statutory meaning to our national commitment to human rights and humanitarian concerns.” 125 Cong. Rec. 23231-32 (Sept. 6, 1979). As part of that commitment, Congress has clearly commanded in the INA that any alien who arrives in the United States, irrespective of that alien’s status, may apply for asylum – “whether or not at a designated port of arrival.” 8 U.S.C. § 1158(a)(1).

Notwithstanding this clear command, the President has issued a proclamation, and the Attorney General and the Department of Homeland Security have promulgated a rule, that allow asylum to be granted only to those who cross at a designated port of entry and deny asylum to those who enter at any other location along the southern border of the United States. Plaintiff legal and social service organizations, Plaintiffs East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and Central American Resource Center of Los Angeles (collectively, the “Immigration Organizations”), now ask the Court to stop the rule from going into effect. ECF No. 8. The Court will grant the motion.

Assignment

We are going to briefly look at the Freedom of Information Act, The Privacy Act, and the federal and state open meetings laws. These are critical in practice. This will be a quick survey to introduce you to the concepts and how to use the laws. Rather than using Chapter 9, we will read this document, which is both a practical guide and comprehensive collection of legal resources:

The Reporters Committee for Freedom of the Press, Federal Open Government Guide 10th Ed (2009).

Also look at pages 2-6 of this document to see how FOIA is used as an adjunct to discovery in litigation:

Citizen Use of Public Records Laws; Public Interest Environmental Law Conference, March 6, 2016

Watch this for fun:

The joys of public hearings

Slides – FOIA and Open Meetings Act

Resources

Study Guide – FOIA and Open Meetings

November 15

News

Maryland seeks to enjoin the appointment of acting AG

The Cybersecurity 202: Amazon is now at the center of a debate over public safety versus privacy

The police want recordings from Amazon from an Echo in a murder victim’s home. This is classic third party, so at best an administrative warrant is needed. From a story last year:

“In the future, intelligence services might use the [internet of things] for identification, surveillance, monitoring, location tracking, and targeting for recruitment, or to gain access to networks or user credentials,” the Guardian reported Clapper said

Assignment

Finish Chapter 8 (slides from the previous class)

November 13

News

CNN sues President Trump and top White House aides for barring Jim Acosta

Assignment

Finish reading Chapter 7 and read to IV. OBTAINING DOCUMENTS AND TESTIMONY, p. 340

Slides – The State Farm Seatbelt Saga and the Fox Clarification (revised)

Slides – Chapter 7 – Part 3

Slides – Administrative Searches and Chapter 8

Resources

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)

F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502 (2009)

We are going to look at [46] A. Governing Principles to [52] in class. This is the Supreme Court’s most recent application of State Farm – does this limit State Farm?

Fox is about fleeting expletives on TV – the court cites this classic discussion of the problem: George Carlin – 7 Words You Can’t Say On TV

Indigenous Envtl. Network v. United States Dep’t of State, No. CV-17-29-GF-BMM, 2018 WL 5840768 (D. Mont. Nov. 8, 2018)

The most recent look at Fox. See page 32.

Study Guide – Chapter 7

Study Guide – Chapter 8

November 8

Roadmap for the last classes

November 13 – Finish Chapter 7 and begin an introductory lecture on the 4th Amendment and Administrative Searches

Study guide will be available by that class

November 15 – Finish introductory materials and briefly review Chapter 8

Study guides for the remainder of the course will be available by class on November 15

November 20 – Finish materials on Chapter 8, if necessary, and get a brief introduction to FOIA. We will use different materials than Chapter 9.

News

RBG hospitalized from fall

Election returns

Attorney General Sessions’ Resignation Letter

If the Attorney General Is Fired, Who Acts as Attorney General?

Assignment

Read to page 308 – III. ARBITRARY AND CAPRICIOUS REVIEW

Slides: Mass v. EPA – Chevron

Slides – Chapter 7 – Part 2

Resources

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007) 86-106, plus Scalia’s dissent, 150-187.

King v. Burwell – edited excerpt

November 6

News

Be sure to arrange to vote on Tuesday!

Denial of Mandamus by SC in Juliana

The court seems to be inviting the 9th Circuit to reconsider its denial of mandamus. Remember, using mandamus in this context is very unusual.

Assignment

Group B

Chapter 7 to 286 (Brown and Williamson example)

Slides – Chapter 7 – Part 1

Group C

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (U.S. 2000) paragraphs 24-96.

Tobacco poses a classic regulatory problem. We will be looking at the conflict between the clear meaning of the words in the Act and the legislative and regulatory history of how the Act was applied. We have Scalia rejecting the plain meaning in favor of legislative history and Breyer rejecting legislative history and going for the clear meaning.

Slides – Brown and Williamson (subject to revision)

Use these to guide your reading of the case. Be able to answer the questions.

Resources

Study Guide – Chapter 6

November 1

News

Visit from Sea Grant

Assignment

Finish materials from last class

Group A

Finish Chapter 6

Slides – Chapter 6 – Part 4

Resources

Study Guide – Chapter 5

October 30

News

Department of the Interior Requests Permission to Destroy Most of its Records

Assignment

Group C

Read to 235 – II. EXCEPTIONS TO JUDICIAL REVIEW UNDER THE APA

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

Lexmark is the current and controlling (9-0) case on what zone of interest really means. Read the text’s presentation of the zone of interest cases within the framework of Lexmark.

Group D

Read to B. Exhaustion of Administrative Remedies – 259

Slides – Chapter 6 Part 3

October 25

Assignment

Petition for Rulemaking – EPA

Finish Mass v. EPA from last class

Group A

Dissent in Mass. v. EPA – paragraphs 106-143.

How many judges dissented? How has the membership of the court changed? This makes the dissent critical – what are they saying and what is the chance that this will become the majority opinion? While I think climate change is the most critical issue facing this country, the dissent may also be right about standing for these cases.

Group B

Juliana v. United States, No. 6:15-CV-01517-TC, 2016 WL 6661146 (D. Or. Nov. 10, 2016)

We are going to discuss the standing arguments in light of Mass. v. EPA, paragraphs 42-72.

October 23

News

Supreme Court suspends proceedings in youth-led climate case

More information on Juliana v. United States.

Assignment

Finish Clapper

Group C

Read to 2. Third-Party Actions and Causation – 230

Slides – Chapter 6 – Part 2 (subject to revision)

Group D

Massachusetts v. E.P.A., 127 S.Ct. 1438 (2007)

Read paragraphs 23-85. (We will look at the dissent next class.) 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. Concentrate on how the court deals with the “injury to all” problem, and check out dissent’s views. Are you convinced that this is the right analysis? Read the text assignment first, then look for the special procedural standing issues in Mass v. EPA. We will finish reading the case when we are reading Chapter 7.

Slides – Mass. v. EPA – Standing

October 18

News

Review The Reg Map for Informal Rulemaking

Not news, but I want to make sure everyone looks at this review of rulemaking.

Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions

Just released.

Assignment

Group A

Chapter 6 to p. 223 5. Informational Injury (we will cover Procedural Injury next class)

Slides – Chapter 6 – Part 1

Group B

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

Snowden’s disclosures came right after this case was decided.

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. We are reading Clapper because it reviews the basic standing cases and because it shows how the court can use factual assumptions to limit standing when it does not want to find that plaintiffs have standing.

October 16

News

NRC Approves Sale of Closed Vermont Yankee Nuclear Plant

Assignment

We will finish our discussion of the materials from previous classes:

Vermont Yankee

Vermont Yankee 12-25, 39-59.

Environmental Impact Statement for Vermont Yankee

Slides – Vermont Yankee

Introduction to OIRA

A brief history of ORIA (Nixon’s Nerd)

Regulation Beyond Structure and Process

A more detailed history of OIRA and its political conflicts of interest.

Slides – Chapter 5 Part 3

2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act

Read the executive summary, pp. 1-4, and look at the charts of costs v. benefits.

Read the executive order – Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs. This amends/partially replaces EO 12866.

Lessons from the godfather of regulatory budgeting on the Trump 2 for 1 EO

Resources

Review The Reg Map for Informal Rulemaking

A graphical review of the rulemaking process

 

 

October 11

News

Ten Great Public Health Achievements — United States, 1900-1999

Assignment

Chapter 2 – pp. 65-69 (we read this, but did not discuss it when we covered Chapter 2)

Read the remainder of Chapter 5.

A brief history of ORIA (Nixon’s Nerd)

Regulation Beyond Structure and Process

A more detailed history of OIRA and its political conflicts of interest.

Saving Lives: A Review of the Record

This is a great article on problems with CBA for some health and safety regulations. While there are some legitimate critiques of some specific examples, on balance it is a good introduction to the subject. Read 13-18  and look hard at tables 1-3 at the end. (AED – automatic external defibrillator) Fish oil supplements did not work out, but eating fish is good for you.)

Resources

Slides – CBA

Slides – Chapter 5 Part 3

Graham, John D. “Saving lives through administrative law and economics.” U. Pa. L. Rev. 157 (2008): 395.

This is an in-depth treatment of cost-benefit analysis for those who want to a more theoretical treatment and guide to the literature.

October 9

News

The Safer Affordable Fuel-Efficient ‘SAFE’ Vehicles Rule

The Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Year 2021–2026 Passenger Cars and Light Trucks – Draft Environmental Impact Statement (July 2018) (Climate change projections on page s-15)

GLOBAL WARMING OF 1.5 °C: an IPCC special report  (2018)

‘Tipping points’ could exacerbate climate crisis, scientists fear

Assignment

Discuss what we learned about adjudications from Well Founded Fear.

Finish the assigned material from last class.

Group C

Chapter 5 to 197

Group D

Vermont Yankee 12-25, 39-59.

Resources

Slides – Chapter 5 – Part 2 – Updated

Slides – Vermont Yankee

 

 

October 2

Assignment

Watch Well Founded Fear on Moodle by next class, 9 Oct.

September 27

News

Emergency Rule – Hazardous Materials: Removal of Electronically Controlled Pneumatic Brake System Requirements for High Hazard Flammable Unit Trains – 49 CFR Parts 174 and 179  (25 Sept 2018)

Is this a valid emergency rule? See the II. Good Cause Justification on page 4 for the justification of not using notice and comment.

Assignment

Group B

Read Chapter 5, 148-176.

Look back at the Ed Dept: Dear Colleague Letter  – is this an improper regulation promulgated as a guideline?

Department of Education – Dear Colleague letter (2017) – Withdraws the 2011 letter.

Slides – Chapter 5 – Part 2

Resources

Study Guide – Chapter 4

Department of Education. Revised Sexual Harassment Guidance: Harassment Of Students By School Employees, Other Students, Or Third Parties (2001)

The 2001 Guidelines relied on in the 2017 Dear Colleague Letter. These were made with notice and comment – does that make them a rule?

34 CFR PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

The actual rule. 45 FR 30955 – The original federal register post of the final rule

 

 

September 25

News

SDNY orders deposition of Commerce Secretary

Very unusual bias case – “Applying well-established principles to the unusual facts of these cases, the Court concludes that the question is not a close one: Secretary Ross must sit for a deposition because, among other things, his intent and credibility are directly at issue in these cases. “

Assignment

Finish materials from last class. No additional readings for this class. We will watch and discuss the documentary, The Regulators.

 

September 20

News

BLM methane rule revision fight

Assignment

Finish Doe v. Baum.

Group A

Chapter 5 to III. RULEMAKING PROCEDURES, p. 148 and D. The Procedures of Notice-and-Comment Rulemaking, 176-180.

Slides – Chapter 5 – Part 1

Resources

Department of Education. Revised Sexual Harassment Guidance: Harassment Of Students By School Employees, Other Students, Or Third Parties (2001)

The 2001 Guidelines relied on in the Dear Colleague Letter.

34 CFR PART 106—NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

The notice and comment regulation.

 

September 18

News

Supreme Court Ruling Means Thousands Of Deportation Cases May Be Tossed Out

Pereira v. Sessions, No. 17-459 (U.S. June 21, 2018)

Assignment

Finish Doe v. Baum.

Review the confidentiality provisions of the dear colleague letter.

Group D

Finish Chapter 4

Slides – Chapter 4 – Part III (subject to revision)

September 13

News

Court certifies class action in SPLC lawsuit against Louisiana’s public defender system

Assignment

Finish material from last class.

Team C

Doe v. Baum , 2018 BL 322756, 6th Cir., No. 17-2213, 9/7/18

6th Circuit establishes standards for public universities doing student sexual assault hearings.

Read this carefully – this is one of the most difficult questions in administrative adjudications.

Resources

Ed Dept: Dear Colleague Letter    – The confidentiality guideline paragraph

The guidance letter that the hearings were based on in Doe.

 

September 11

News

Doe v. Baum , 2018 BL 322756, 6th Cir., No. 17-2213, 9/7/18

6th Circuit establishes standards for public universities doing student sexual assault hearings.

Assignment

Group A

Read to B The Modern Rule (p. 124)

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)

Group B

Read Mathews v. Eldridge (edited version)

Slides – Chapter 4 – Part II (review for Mathews questions)

Resources for class discussion

Paul v. Davis list of shoplifters

van Heerden – Round II – LSU Settles on stigma + claims

Louisiana incarceration rate

Louisiana murder rate

Facts about SSI Disability

General resources

Study Guide – Louisiana Adjudications and Wooley

September 6

News

Can the President direct prosecutions?

How does the unitary executive theory fit with the independent DOJ assumption?

I Am Part of the Resistance Inside the Trump Administration

Was this the right way to resist? – This Is a Constitutional Crisis

Assignment – Group D

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

Read Goldberg v. Kelly

Slides – Chapter 4 – Part-I

September 4

News

State of emergency declared by Louisiana Gov. Edwards

 

Assignments

Finish Wooley

Group C

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.

Slides – Bonvillian Cases

August 30

News

U.S. is denying passports to Americans along the border, throwing their citizenship into question

Assignment

Group B – we are returning to you for the Lucia case: Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018)

Group A – Wooley v. State Farm Fire and Cas. Ins. Co., 893 So.2d 746 (La. 2005) – study guide for Wooley to help guide your reading

(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.)

Slides – Wooley and the DAL

August 28

News

AFL-CIO v Trump – District Judge enjoins several provisions of executive orders limiting federal employee collective bargaining

Italy is considering adopting a version of notice and comment for approval of infrastructure projects such as highways and bridges. Unlike US notice and comment, it would also include a public hearing component:

DECREE OF THE PRESIDENT OF THE COUNCIL OF MINISTERS 10 May 2018, n. 76 

This is not available in an English translation and I do not read Italian. There is an English translation of the Italian APA:

The Italian Administrative Procedure Act, Law N. 241 dated 7th August 1990 (Unofficial English translation)

Assignment – Team D

Finish Chapter 3

Slides – Chapter 3 – Part 2

Federal APA

 

August 23

News

Can you indict a sitting president?

Assignment – Team C

(Team B – We will finish discussing Chapter 2. Review the DOJ regs on the independent counsel.)

Read Chapter 3 Section I, skip Section II for now, then Section III to G. Ex Parte Communications.

Slides – Chapter 3 – Part 1

Study Guide – Chapter 3

August 21

News

Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units; Revisions to Emission Guideline Implementing Regulations; Revisions to New Source Review Program (2018)

Just released EPA rule to roll back the Clean Power Plan and ultimately increase GHG emissions from coal-fired power plants.

The President Executive Order 13526 – Classified National Security Information

EXECUTIVE ORDER #12968 – ACCESS TO CLASSIFIED INFORMATION

Webster v. Doe, 486 U.S. 592 (1988)

Congress cannot prevent a fired CIA employee from bringing a first amendment claim over his firing.

Finish assignment from last class.

Teams stay on the same material if it is carried over. Link back to August 16

Assignment – Team B

This class focuses on executive branch control of agencies through the appointments process. There will be a brief introduction to Executive Orders but we will reserve the materials on the executive review of agency actions (usually rulemakings) before they are finalized by the agency. We will look at that review that in Chapter 5.

Finish Chapter 2.

Slides – Chapter 2 – Part 2

I am moving the Lucia materials to a later class to allow us to finish Chapter 2 today and so that we have covered the basics of adjudications before we look at the details of Lucia.

We will supplement the Morrison v. Olson materials in the book with these regs and explanations on the current Special Counsel:

The DOJ Regulation on the Special Counsel – 28 CFR Part 600.

The Explanation of the Special Counsel Regulation – 64 FR 37042

Could Congress Simply Codify the DOJ Special Counsel Regulations?

This essay highlights the difference between the statute at issue in Morrison and the DOJ regs.

August 16

Room Change – Class meets in 212!

News

Critics accuse Trump of stripping ex-CIA chief’s clearance to create distraction

Assignment – Team A

We will cover Chapter 2 fairly quickly. It is a mix of historical material, constitutional law review, and core concepts in administrative law. These are important concepts but they are – usually – not at issue in day to day administrative law practice.

This class will focus on congressional control of agencies, starting with the non-delegation doctrine and working through legislative veto and congressional committee review (which we will revisit later in Chapter 4.)

Chapter 2 to 1. Congress (p 41)

Skim this material, it should be a quick review of issues you have discussed in Constitutional Law. I will review it through lecture. We are then going to look at the modern approach as laid out in Whitman. Read the assigned paragraphs carefully and be prepared to discuss the questions in the study guide.

Whitman v. American Trucking Associations, Inc., 531 U.S. 457 (2001) paragraphs 44-50. Witman v American Trucking Study Guide

Chapter 2 from 1. Congress to 2. The President (p52) (We will finish Chapter 2 next class.)

We will cover most of this material through lecture, with the exception of congressional powers as discussed in Chadha case.

INS v. Chadha, 462 U.S. 919 (1983) – read paragraphs [102] III through [154]. INS v Chadha – Study Guide

There is a case on cert to the Supreme Court looking at the impact of a statute that was written with a legislative veto before Chadha, and not revised to remove the legislative veto after Chadha. Just skim the case to see the question it poses and how the court handles it.

Nat’l Mining Ass’n v. Zinke, 877 F.3d 845 (9th Cir. 2017)

In 1996, Congress passed the Congressional Review Act to expedite the repeal of agency actions that it did not like.

Congressional Review Act Fact Sheet (2016)

Center for Progressive Reform: The Congressional Review Act

Resources

Study Guide – Chapter 2

Slides – Chapter 2 – Part 1

August 14 – First Day of Class

General Course Information

Required Text: (You can buy these online if they are not available. )

Examples & Explanations: Administrative Law, by Funk, Seamon, 5th ed., 2015 – available online at Amazon and BN.COM.

Additional materials such as cases will be posted on this WWW site. Any proprietary materials will be posted on Moodle. Most class days will include a discussion of Administrative Law in the News. Check the blog the morning before class for any updated news items. I will also provide study materials for specific topics to help you prepare for class and then consolidate your knowledge after our class discussion. If you have been provided study materials as part of your assignment, read them it carefully. We may not cover all the included material in class.

Class meets in W210.

Class participation can affect your final grade.

Class Law Firms

We are going to divide the class into 4 groups. One of our  class law firms will be in charge of class discussion each day, meaning that we will rotate through all the law firms every two weeks. While everyone should read the assignments for class, I expect the members of the law firm to be on top of the material, prepared to discuss it, and able to help us understand how we can apply it in practice.

Team A – Last names A-C

Team B – Last names D-H

Team C – Last names I-P

Team D – Last names Q-Z

Administrative Law in the News

CFPB Needs Help to Appeal N.Y. Ruling on Constitutionality

Tracking deregulation in the Trump era

White House counts on Kavanaugh in battle against ‘administrative state’ https://wapo.st/2B4K2Ar

Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act

Assignment for August 14th

Read Chapter 1, which is a general introduction to administrative law at the state and federal level. We will have a general discussion of the administrative law system.

Class Presentation Materials

The United States Government Manual

Sizing Up the Executive Branch – Fiscal Year 2017

Slides – Introduction to Administrative Law

Administrative Law Resources

Archive of past administrative law exams

Regulatory Review – a general administrative law blog.

Lawfare – a national security oriented administrative law blog.

Federal Administrative Procedure Act

Louisiana Administrative Law

Administrative Law Glossary (map view) (Word)- These are definitions prepared by Professor Donald Brodie, Emeritus, University of Oregon. They may help you understand basic terms.