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Unformatted text preview: Administrative Law Outline (Minda) Dan Mevorach Meta-Outline Is the focus Agency Action or Court Action (Challenge)? Agency Action Is this an Agency under §551(1)? Is this actually agency action under §551(13)? IF YES: What is the Agency Doing? Rulemaking or Adjudication? Rulemaking Is this a legislative or interpretive rule? Legislative 1. Does Agency have authority to promulgate legislative rules? 2. Do the Agency’s authorizing statutes dictate particular procedures? 3. If not, is this Formal or Informal Rulemaking under the APA? 4. Are there any Hybrid Rulemaking Issues? 5. Is the record sufficient? 6. Have notice and comment been done? Or is this action exempt? 7. Are there any NEPA issues? 8. Are there any analytical issues? Interpretive 1. do Legislative analysis as well 2. follow exemption 1 from §553, p. 16 Adjudication 1. Does Agency have authority to adjudicate? 2. Are there specified procedures? 3. If not, is this really a rule in disguise, or is it a valid adjudicatory rule? 4. Are there due process hearing issues? 5. Are there article III issues? Court Action Can the Court Hear this Case? What are the issues? What standard of review for each issue? How should court decide each issue?- - 1 Administrative Law Outline (Minda) Dan Mevorach Doctrines of Administrative Law: Models of Administrative Agencies Public Interest (Optimistic)- focuses on the agency as created in response to specific social problems, and how well agency action benefits society as a whole. In this view, administrative agencies exist to: prevent market failures and externalities remedy asymmetric information among consumers regulate natural monopolies provide public goods Buzzwords : Agency Expertise, Specialization Efficiency, Independence Public Interest Public Choice (Pessimistic)- focuses on the agency as an instrumentality which reflects the political struggle between legislators, interest groups, etc. It sees agencies in terms of the interests they serve. In this view, administrative agencies exist to: provide private goods to dominant players protect the market share of powerful firms represent the views of the powerful Buzzwords : Agency Captured by Industry, Amenable to Influence, Capricious Delegation of Power Non-Delegation Doctrine- Congress cannot delegate its legislative power. Art. 1 §1- “all legislative power herein granted shall be vested in a Congress”. Intelligible Principle- Agencies are allowed to exercise legislative power to the extent they are “ascertaining whether a fact occurred”, or “filling in the details” of a statute. According to this logic, Congress is allowed to set an “intelligible principle”, which the agency is only implementing when it formulates rules and regulations. No “determinate criterion” is required, merely “substantial guidance”. Yakus ....
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- Fall '06