Breaking news!
The Supreme Court decided two cases on Friday that affect adlaw. In Biden v. Nebraska, the court struck down the student loan forgiveness program, in its first big case using the major questions doctrine from last summer, as discussed below. 303 Creative LLC v. Elenis is an LBGTQ discriminal case. Its adlaw issue is standing – the court allowed this case, despite there being only a hypothetical standing injury. I will post materials on the adlaw issues from these cases later. For an excellent editorial on this year’s court term, see Don’t believe the data: This is the most conservative Supreme Court we’ve known.
Discussion forum – a discussion forum will open later in the week when you have had time to finish the Chapter 7 materials.
Part 1
Read West Virginia v. EPA 597 U.S. ___ (2022) (Edited)
(These materials are both an introduction to the important new major questions doctrine and a review of previously covered materials.)
This is the edited USSC opinion on the Obama EPA’s authority to issue the Clean Power Plan (CPP), which required the states to develop air pollution control plans that would reduce the percentage of their state’s electrical power that is generated by burning coal. We are reading the opinion for its explanation of the major questions doctrine (MQD). This is a new test/doctrine that appeared in some of the shadow docket cases decided over the past year. (Shadow docket cases are cases that are decided without the usual briefing or oral arguments.) This is the first fully briefed and argued case decided under the MQD and the first to explain how doctrine fits into the process of judicial review of agency rulemaking.
As I have said when we have reviewed other cases, be skeptical when judges talk about things other than the law. Their main source of facts, including science and history, is the briefs and pleadings of the advocates before them. Everyone appearing before the court, with the possible exception of experts appointed by the court to advise it as provided for in the federal rules of civil procedure, has their own version of the story. In this case, the original injunction was based on the harm that would be done to the economy by the higher electricity prices that would result from forcing utilities to shift from burning coal to using natural gas or renewables. While the CPP never went into effect because of injunctions, the market caused utility companies to substitute cheap natural gas for coal in most of their electrical generating stations. (The Obama EPA assumed this would happen, which meant that the CPP would never need to be enforced.) By the time of this decision, the % of electricity generated by coal had fallen below the goal set in the CPP and electricity prices stayed stable. (With the exception of short-term dislocations related to the Ukraine war and the sanctions on Russian oil and gas sales.)
The details of the Clean Air Act provisions at issue in the case are not necessary for our purposes. Note that when Roberts gets to the MQD analysis he does not do a detailed statutory analysis. Think about why this is not necessary under the MQD. Why does the dissent criticize Roberts for not doing this analysis and what result would the defense have reached? Pay particular attention to the factors that Gorsuch proposes for when the MQD will be used and how to apply it. While Roberts’s language is specifically directed to a narrow section of the CAA, do you think that the Court will uphold any significant regulation of GHGs without new legislation authorizing the regulations?
Video – Putting the Pieces Together after West Va. v. EPA
Narrated Powerpoint – Putting the Pieces Together after West Va. v. EPA – (Slides as Word file for reading)
Finish reading Chapter 7. Read the materials on revising rules (State Farm) very carefully.
Read – FCC v. Fox Television Stations, Inc., 556 U. S. 502 (2009) – edited for analysis
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
Read – Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) – edited for analysis
Video – Chapter 7 – Arbitrary and Capricious Review
PowerPoint – Chapter 7 – Arbitrary and Capricious Review
We are going to take a deep dive into the automobile safety regulation saga that included the State Farm case. It is a good picture of how regulations start with public concern, then evolve through time and change the nature of an industry. It also shows how a regulatory choice can have profound unintended consequences – excluding small trucks from car safety regulations creates the minivan and ultimately the SUV industry. I have pulled together some short videos about the auto industry and safety features from the 1960s for background.
Corvair Monza Spyder Commercial with Michael Landon (1963)
This one-minute video shows the Chevrolet Corvair, a mid-engine sports sedan inspired by the Porsche and introduced in 1960, five years before Ford Mustang. We The Corvair and Ralph Nader start the car safety revolution in the US.
For those of you who are not old or fans of old cars, this video will show you the seatbelt systems talked about in State Farm.
Video – 1974 GENERAL MOTORS PROMO FILM FOR SAFETY BELTS / SEAT BELTS
The first 9 minutes of this video will show you why everyone hated the interlock system that Congress eventually banned. (I apologize that it is also an example of sexist car ads from the 1970s.)
After State Farm, car manufacturers fought airbags for years, coming up with various awkward automatic seatbelt systems.
Video – What is an automatic seatbelt?
These were unfortunately named – they are actually only automatic shoulder belts. Unless the car had an interlock that also required that the seatbelt be fastened, many drivers thought they were buckled in when the shoulder belt was engaged. Unfortunately, using a shoulder belt alone provides little protection.
Video – Door-mounted step-in seatbelt/shoulder belt
We are jumping into this video which shows the operation of an automatic seatbelt/shoulder belt. You can see what a hassle it was to use. Worse, if the door came open during a crash it became an ejection seat. The section on the owner’s manual is entertaining.
Video – Chapter 7 – The Seat Belt Saga
PowerPoint – Chapter 7 – The Seat Belt Saga
Video – Chapter 7 – Post-State Farm Standards for the Rulemaking Record
PowerPoint – Chapter 7 Post-State Farm Standards for the Rulemaking Record
Video – Chapter 7 – Litigation Issues
PowerPoint – Chapter 7 – Litigation Issues
You should also review the text of the slides on the MQD to think about how Chevron and the MQD interact.
Part 2
Read Chapter 8
The legal framework for administrative searches and governmental collection of private information is a foundational part of our modern information-driven world. Some of the sections of ACJ do not introduce administrative searches and the regulated industries doctrine which some administrative searches are based on. Because of this, I have prepared three presentations to provide the historic and jurisprudential background necessary to understand the interplay of administrative and criminal law searches. I will not examine you over the details of these presentations, only on the key principles. The final presentation deals with the remaining issues that I think are important from Chapter 8. I have prepared a study guide on the specific information that you will be responsible for on the test. This will make it easier to extract what you need to learn from the presentations and the Chapter and not get bogged down in unnecessary detail.
Study Guide – Chapter 8 (Word) – Study Guide – Chapter 8 (PDF)
Video – Administrative Searches From the Colonial Period to 1968
PowerPoint – Administrative Searches From the Colonial Period to 1968
Video – Administrative Searches: The Area Warrant Cases
PowerPoint – Administrative Searches: The Area Warrant Cases
Video – Administrative Searches: Regulated Industries and Entry based on Licenses and Permits
PowerPoint – Administrative Searches: Regulated Industries and Entry based on Licenses and Permits
Video – Chapter 8 – Government Data Collection
PowerPoint – Chapter 8 – Government Data Collection
Part 3
It is important for you to have a basic understanding of the Freedom of Information Act, the Privacy Act, and the open meetings laws. Start by reading Chapter 9 to Exemption 2, p. 376. This is the basic structure of FOIA, plus the discussion of the 1st Exception.
Pages 376 t0 III. GOVERNMENT IN THE SUNSHINE ACT, p. 399 covers the next 8 exemptions to the Act. You do not need to memorize these. Skim these pages to get a sense of what they cover, but do not worry about learning them for the exam.
Then read III. GOVERNMENT IN THE SUNSHINE ACT and V. THE PRIVACY ACT. (We are skipping IV. FEDERAL ADVISORY COMMITTEE ACT.)
Video – Chapter 9 – FOIA – Part 1
PowerPoint – Chapter 9 – FOIA – Part 1
Video – Chapter 9 – FOIA – Part 2, Privacy Act, and Open Meetings (updated with coverage of open meetings acts)
PowerPoint – Chapter 9 – FOIA – Part 2, Privacy Act, and Open Meetings (updated with coverage of open meetings acts)
FOIA Resources
United States Department of Justice Guide to the Freedom of Information Act