Admin Herz Outline1 Sp2000

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www.swapnotes.com Administrative Law Spring 2000 Professor Herz Page 1 of 41 This outline is from a course Professor Herz taught at NYU Law School. Ryan Papir ADMINISTRATIVE LAW OUTLINE—Professor Herz, Spring 2000 INTRODUCTION A. Reasons to regulate 1. The need to control monopoly power—where there’s natural monopoly (i.e. more efficient to have a monopoly), govt will decide who monopolist will be and how much they can charge 2. Information defects, i.e. the need to compensate for inadequate information 3. Externalities (spillover) 4. Excessive competition 5. Scarcity—not enough of something and it needs to be parceled out—e.g. broadcast frequencies B. Limits on agencies 1. DP Clause 2. Separation of powers 3. Organic statute 4. Cross-cutting statutes—esp. APA 5. Executive Orders 6. Agency’s own regs 7. Admin common law C. Congress creates agencies—once created, Congress can control by: 1. Alter funding 2. Narrow agency’s power 3. Eliminate AdminHerzOutline1S00.pdf
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www.swapnotes.com Administrative Law Spring 2000 Professor Herz Page 2 of 41 THE CONSTITUTIONAL STATUS OF ADMINISTRATIVE AGENCIES I. NONDELEGATION A. Nondelegation concerns what limits there are to Congress’s handing over legislative power to the President (in reality, to an agency) B. Basic rule: As long as Congress has established an intelligible principle to guide and limit an agency’s action, then Congress’s handing over power to the agency is permissible (J.W. Hampton ) C. S Ct has found Cong violated nondelegation doctrine, i.e. no intelligible principle in just two cases 1. Panama Refining Co. , p.42 (1935) 2. ALA Schechter Poultry , p. 43 (1935)—Ct strikes down a code of fair competition— impermissible delegation of legislative power for Congress to allow Pres to come up w/ codes --It wasn’t Dept of Ag who wrote the Code, but rather members of the poultry industry (and Pres then rubberstamped)—really a delegation to private parties D. Amalgamated Meat Cutters , p. 47 (DDC 1971)—Ct upholds Economic Stabilization Act and rejects Π s’ claim of unconstitutional delegation by Congress to Pres --Text of act is slim: Cong authorizes Pres to stabilize rents, prices, wages and salaries—very little in statute says when, whether, how to do so Ct’s methodology fairly typical: --Ct reads meaning into statute by looking at legis hist, nature of the problem, past examples of similar regulatory efforts --Stresses rulemaking is in public, not private, hands --Agency will be producing regs that will ties its own hands If this delegation is okay, it’s hard to imagine what wouldn’t be E. The Benzene Case , p. 54 (1980)—OSHA standard limits exposure of workers to benzene 1. Section that provides guidance w/r/t toxic materials: OSHA required to set exposure limits of toxic materials in workplace that would “most adequately ensure, to the extent feasible…that no EE will suffer material impairment” of health; also, a lot of congressional punting w/r/t definition
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This note was uploaded on 02/14/2008 for the course LAW 7521 taught by Professor Stack during the Spring '04 term at Yeshiva.

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Admin Herz Outline1 Sp2000 - www.swapnotes.com...

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