ADMIN LAW - Bruff - Fall 2006 - OUTLINE

ADMIN LAW - Bruff - Fall 2006 - OUTLINE - ADMIN OUTLINE...

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ADMIN OUTLINE Note: Scalia and Breyer used to be professors of admin law – if they agree, then it’s probably a good decision N ATURE & F UNCTIONS OF A DMIN A GENCIES o admin law focuses on procedure – it is the legal principals that govern statutory administration by the exec agencies of gov o APA (1946) is the statutory constitution, pretty flexible o St admin laws draw on fed laws under Model State APA (Colo has mostly adopted Model Act) - The Fourth Branch of Gov : o Constit creates 3 brances, w/ specified pwrs and interrelation. Separation of pwr law defines relationships/boundaries btwn branches o Most admin agencies combine all 3 primary constit function (1) promulgate rules that have force of law (like Cong’s Art I pwr) (2) investigate compliance w/ rules and statutes, bring enforcement actions (like Exec’s Art II pwr) (3) adjudicate statutory claims (like fed ct’s could do under Art III) o Responses of modern admin law to the problems presented by agencies doing all 3 Functions combined in one agency can be separated w/in agency (agn prosecutors can be forbidden to supervise agn judges) Statutes (APA or agn’s enabling legis) can specify fair procedures that agn must follow. If no more specific legis, then APA tells agn how to make rules and adj cases Constitutional function of execution necessarily inc both quasi-legis and quasi-judicial activities; hence a simple functional distinction among activities cannot solve sep of pwr concerns. This is ok b/c of relationships agencies have with Constit branches - nature of supervisory relationships btwn each branch and agencies is central to satisfying sep of pwrs concerns. (ie pres nominates head of agn, Cong empowers and funds agn, cts ensure agn actions conform to law) o When should gov intervene? Social prob is detected: (OSHA (1970) case study: workplace safety/health, thousands dies, mil’s injured, $bil lost) Market Failure: a primary justification for gov action Q#1: is the social prob a result of market failure? (ie: Do wages already reflect risk? Is the market incorporating and compensating risk differentials?) o Forms of market failure Info costs: markets depend on info, but getting costs time & $ Transaction costs: always there, excessive can impair market Spillover/externality: costs not realized by markets (pollution) o Responses to market failure : (ascending order of compulsion) Have gov provide more info Impose taxes/monetary penalties to reflect and deter risk Performance standards (req’ing an outcome): allows reg party to determine responses and efficiency can flow from that (ie: rule that injury rates cannot exceed some % of historic rates) “command & control” regs tell what / how (backup beepers) Q#2: is existing law sufficient?
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  • Fall '06
  • Bruff
  • Law, Sula, Veto, Clinton v. City of New York, Cong

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