Gellhorn and Byse's administrative law : cases and comments / by Peter L. Strauss [and others].
2011
KF5402 .S73 2011 (Map It)
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Author
Title
Gellhorn and Byse's administrative law : cases and comments / by Peter L. Strauss [and others].
Published
New York : Foundation Press, 2011.
Call Number
KF5402 .S73 2011
Edition
Eleventh edition.
ISBN
1599414295
9781599414294
9781599414294
Description
lxxxvii, 1,508 pages ; 26 cm.
System Control No.
(OCoLC)745598216
Bibliography, etc. Note
Includes bibliographical references and index.
Series
Record Appears in
Portion of Title
Administrative law
Added Author
Table of Contents
Preface
iii
Acknowledgments
ix
Table of Cases
xxxiii
Table of Text and Periodical Citations
liii
Table of Statutes
lxxvii
pt. 1
OVERVIEW
1
ch. I
An Introduction to Administrative Law
2
1.
An Introductory Example
2
The Problem of Field Sanitation
2
2.
The Basics
10
Frequently Asked Questions
10
3.
The Tasks of the Administrative Law
18
A Note on Teaching and Studying Administrative Law from This Casebook
30
pt. 2
THE AGENCY AT WORK
31
ch. II
Procedural Frameworks for Administrative Action
32
1.
The Fundamental Procedural Categories of Administrative Action: Rulemaking and Adjudication
35
a.
The Constitution
35
Londoner v. Denver
35
Bi-Metallic Investment Co. v. State Bd. of Equalization
39
Notes on the Londoner/Bi-Metallic Distinction
40
b.
The Fundamental Statute
50
Administrative Procedure Act of 1946
50
Notes
51
Notes on the History of the APA
53
Notes on Interpreting the APA
59
c.
Additional Sources of Procedural Constraint
65
2.
Procedures Outside the Fundamental Procedural Categories: Information Gathering and Inspection
66
a.
Choices of Government Style in Inspecting: A Case Study of OSHA
67
b.
Required Forms and Reports
77
c.
Rights to Refuse Cooperation With Demands for Information
80
Marshall v. Barlow's
81
Notes
87
Notes on the Cases Before Barlow's
88
Notes on the Closely Regulated Industry Exception
89
Notes of Subpoenas and the Fifth Amendment
97
Braswell v. United States
99
ch. III
Rulemaking
109
1.
Introduction
110
Notes
112
2.
The Requirements of [§]553 Notice-and-Comment Rulemaking
119
a.
No More than [§] 553 Requires?
120
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc
120
Notes
129
Notes on the Problems of Finding and Reviewing Contested "General" Fact
132
b.
Notice
137
Natural Resources Defense Council v. Environmental Protection Agency
138
Notes
141
c.
An Opportunity to Comment and A Concise General Statement of a Rule's Basis and Purpose
143
United States v. Nova Scotia Food Products Corp
144
Notes on the Opportunity to Participate
152
Notes on the Concise General Statement of the Rule's Basis and Purpose
159
3.
Exceptions to [§] 553 Notice-and-Comment Requirements
165
a.
The Good Cause Exception
166
United States v. Dean
166
Notes
171
Notes on Interim Final and Direct Final Rulemaking and Remand Without Vacatur
173
Notes on [§] 553(a) Exclusions
177
b.
The Exception for Interpretive Rules and Policy Statements
178
General Electric Company v. Environmental Protection Agency
178
Center for Auto Safety v. National Highway Traffic Safety Administration
185
Notes
188
Notes on the Difficulty in Distinguishing Legislative and Nonlegislative Rules
191
Notes on Interpretive Rules and Regulatory Vagueness
197
4.
Getting Rulemaking Started
203
a.
Rulemaking Initiation and Development Within the Agency
203
b.
Public Initiation of Rulemaking
207
c.
Negotiated Rulemaking
209
d.
Regulatory Planning and Review
213
Executive Order 12866
213
Notes
213
Notes on the Mechanics of Executive Order 12866
218
Notes on Ongoing Issues With Executive Order 12866
226
Notes on Cost-Benefit Analysis and Risk Assessment
234
5.
After the Comments Are In---The Decisionmaking Process in Rulemaking
242
a.
Ex Parte Contacts
242
Home Box Office, Inc. v. Federal Communications Commission
243
Notes
247
b.
An Open---Minded Decisionmaker?
252
C & W Fish Co., Inc. v. Fox
252
Notes
255
ch. IV
Adjudication
259
1.
Initial Hearings in Formal Adjudication
261
Citizens Awareness Network, Inc. v. United States
262
Notes
269
a.
When Is APA On-The-Record Adjudication Required?
269
b.
Procedural Issues
278
c.
Evidentiary Issues
286
Castillo-Villagra v. Immigration and Naturalization Service
287
Notes
292
Notes on Judicial and Administrative Approaches to Evidence and the Distinction Between Adjudicative and Legislative Facts
293
d.
Who Is Entitled to Participate?
297
Envirocare of Utah, Inc. v. Nuclear Regulatory Commission
297
Notes
300
Notes on Public Interest Representation
305
e.
The Presiding Officer
308
(1).
An Impartial Hearer
312
(2).
Managerial Controls
317
2.
Formal Adjudication at the Agency Level
320
a.
The Obligations of Notice and Hearing
321
Morgan v. United States
321
Morgan v. United States
325
Notes
328
b.
The Impact of Multiple Roles
332
Federal Trade Commission v. Cement Institute
333
Notes
337
c.
Separation of Functions and Limits on Communication
342
Professional Air Traffic Controllers Organization v. FLRA
342
Notes
353
(1).
Interested Agency Staff & Agency Separation of Functions
354
(2).
Pressure From Other Parts of Government
361
Pillsbury Co. v. FTC
362
Notes
365
(3).
Relations With Regulated Parties and the Public
367
3.
Alternatives to On-the-Record Adjudication
371
a.
Informal Adjudication
372
5 U.S.C. [§] 555
372
Pension Benefit Guaranty Corp. v. LTV Corp
372
Notes
375
b.
Alternative Dispute Resolution
382
Department of Transportation, "Statement of Policy on Alternative Dispute Resolution"
383
4.
"Choosing" a Mode for Policymaking
385
a.
Use of Adjudication for Making Policy
386
Securities & Exchange Commission v. Chenery Corp
386
Notes
394
National Labor Relations Board v. Bell Aerospace Co
396
Notes
398
b.
Retroactivity Constraints
406
(1).
Retroactive Application of New Rules Through Adjudication
406
Epilepsy Foundation of Northeast Ohio v. National Labor Relations Board
406
Notes
408
(2).
Limitations on Retrospective Rulemaking
413
Bowen v. Georgetown University Hospital
413
Notes
417
c.
Rulemaking's Effect on Statutory Hearing Rights
420
Heckler v. Campbell
420
Notes
423
d.
Comparative Administrative Procedure
428
ch. V
Transparency, E-governance and the Information Age.
435
Memo: Transparency & Open Government
435
Memo: Open Government Directive
437
Notes
441
1.
Secret Law
445
Cervase v. Office of the Federal Register
446
Notes
451
2.
Freedom of Information Legislation
456
Memo: The Freedom of Information Act
456
Note
457
The Federal Freedom of Information Act, 5 U.S.C. [§] 552
458
a.
FOIA's General Characteristics
460
Milner v. Department of the Navy
460
Notes
471
Notes on the General Background of FOIA
473
b.
FOIA in Operation
480
Fox News Network, LLC v. Department of the Treasury
480
Notes on Exemptions Protecting the Operational Needs of Agencies
500
Notes on Exemptions Protecting Information Supplied to the Government by Others
502
c.
The Reverse FOIA Action
510
Chrysler Corp. v. Brown
510
Notes on the Ability of Suppliers to Assure the Protection of Information They Provide the Government
515
3.
Government in the Sunshine
518
Letter to Congress from Federal Communications Commission
518
Notes
520
4.
Internet Disclosure as Regulation
525
Memo: Disclosure & Simplification as Regulatory Tools
525
Notes
530
5.
The Promise and Problems of E-Rulemaking
534
a.
The Public's Participation
536
b.
Management Issues
542
pt. 3
THE AGENCY AND THE CONSTITUTION
547
ch. VI
Agency Relationships with Congress & the President: The Structural Constitution
548
1.
Introduction
551
a.
Overview: Is the Regulatory State Constitutional?
551
Gary Lawson, The Rise and the Rise of the Administrative State
552
The Storrs Lectures: Discovering the Constitution / Bruce A. Ackerman
556
The Place of Agencies in Government: Separation of Powers and the Fourth Branch / Peter L. Strauss
559
b.
Methodology: Formalism v. Functionalism
562
Youngstown Sheet & Tube Co. v. Sawyer
563
Note
573
Notes on Contemporary Formalism & Functionalism
574
2.
Delegation of Power to Agencies
580
a.
Delegation of Regulatory Lawmaking Power
581
(1).
The Nature of the Constitutional Problem
581
American Trucking Assn's., Inc. v. Environmental Protection Agency
581
American Trucking Assn's., Inc. v. Environmental Protection Agency
588
On Respondent EPA's Suggestion for Rehearing En Banc
589
Whitman v. American Trucking Assn's, Inc
590
Significant Cases
596
Notes
600
(2).
The Past and Future of Nondelegation Doctrine
606
(i).
The Evolution of Nondelegation Doctrine
607
Notes
614
(ii).
Competing Reactions to Current Nondelegation Doctrine
619
(iii).
Delegations to Private and International Actors
624
b.
Delegation of Regulatory Adjudication Power
631
Commodity Futures Trading Commission v. Schor
633
Significant Cases
638
Notes
644
Notes on the Public/Private Rights Distinction and the Right to a Jury Trial
645
3.
Congressional Direction of Regulatory Outcomes
651
a.
Vetoes
652
Immigration and Naturalization Service v. Chadhra
652
Notes
660
Notes on Alternatives to the Veto: Direction Via Legislation and Committee Oversight
663
b.
Direct Control Over Regulatory Actors
668
Bowsher v. Synar
668
Notes
673
Notes on Direct Congressional Participation in Regulatory Decisionmaking
675
c.
Appropriations and Spending
677
4.
Presidential Direction of Regulatory Outcomes
685
a.
The Emergence of Presidential Directory Authority
686
b.
Possible Legal Bases for Presidential Directory Claims
695
c.
Presidential Directory Authority in Context: Adjudication, Rulemaking & Enforcement
702
Portland Audubon Society v. The Endangered Species Committee
702
Significant Case
707
Notes
710
5.
Appointment and Removal
718
a.
The Removal Power
719
Free Enterprise Fund v. Public Company Accounting Oversight Board
721
Significant Cases
733
Notes
742
Notes on the Implications of Free Enterprise for Independent Agencies
745
Notes on the Significance of "Independence"
746
Notes on the Implications of Free Enterprise for the Civil Service
748
b.
Appointment and Confirmation
750
Notes on the Structure and Reach of the Appointments Clause
751
Notes on Confirmation: Checks and Balances in Action?
757
ch. VII
Procedural Due Process and the Administrative State
763
1.
The Fundamental Premise of the Opportunity to be Heard
765
Londoner v. Denver
765
Bi-Metallic Investment Co. v. State Bd. of Equalization of Colorado
765
Note
765
2.
Due Process Encounters the Ambitions of Modern Government
766
a.
The Traditional Right/Privilege Distinction and its "Demise"
766
Bailey v. Richardson
766
Notes
770
Cafeteria & Restaurant Workers Union v. McElroy
775
Notes
778
b.
The Modern Watershed
781
Goldberg v. Kelly
781
Notes on the Logic of Goldberg
789
Notes of the Practical Impact of Goldberg
793
3.
Contemporary Doctrine: The Breadth of Protected Interests
797
Board of Regents of State Colleges v. Roth
797
Perry v. Sindermann
805
Notes on the Mechanics of Entitlement Analysis
808
Notes on Assessments of the Roth/Sindermann Approach
811
Kapps v. Wing
812
Notes on the Decision in Kapps v. Wing
819
Notes on the Alternative Line of Doctrine
821
4.
Contemporary Doctrine: What Process Is Due? And When?
826
a.
The Forms and Limits of a Utilitarian Calculus
827
Mathews v. Eldridge
827
Notes on Mathews v. Eldridge's Point of View
836
Notes on What Should Count in the Mathews Three-Part Test
841
Cleveland Board of Education v. Loudermill
844
Notes on the Application of Mathews' Three-Part Test in Loudermill
851
Notes on the Theory of "The Bitter With the Sweet"
852
Wilkinson v. Austin
854
Notes on the Opinion in Wilkinson v. Austin
864
Notes on the Scope of the Mathews Test
867
Notes on the Mathews Test and Traditional Regulations
876
b.
The Relevance of Post-Deprivation Judicial Remedies
881
North American Cold Storage Co. v. Chicago
882
Notes
884
Ingraham v. Wright
888
Notes
895
5.
The Question of Public-or Private-Action
900
Rendell-Baker v. Kohn
900
Notes
908
Thomas M. Cooley Law School v. American Bar Association
913
Notes
921
pt. 4
THE AGENCY AND THE COURTS
925
ch. VIII
Scope of Review of Administrative Action
926
1.
The Baseline Norm of Legal Regularity
928
Shaw's Supermarkets, Inc. v. National Labor Relations Board
928
Notes
931
2.
Judicial Review of Agency Factual Determinations
938
Universal Camera Corp. v. National Labor Relations Board
939
Notes
948
Association of Data Processing Service Organizations, Inc. v. Board of Governors of the Federal Reserve System
955
Notes
960
3.
Judicial Review of Agency Determinations Beyond the Facts
964
a.
Historical Building-Block Cases
964
National Labor Relations Board v. Hearst Publications, Inc
965
Notes
970
Skidmore v. Swift & Co
972
Notes
974
Transitional Note
975
b.
The Present-Day Framework
976
Citizens to Preserve Overton Park Inc. v. Volpe
976
Notes on the Particular Proceedings
983
Notes on Agency Findings, Decision Makers' Mental Processes, and "Post-Hoc" Rationalizations
984
Notes on Overton Parks' Standard of Review
988
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Ins. Co
991
Notes on the Opinion in State Farm
1002
Notes on the Wisdom (or Not) of "Hard Look" Review
1006
Notes on "Politics" as a Possible Element of "Arbitrary and Capricious" Review
1011
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc
1014
Notes on the Notoriety of Chevron
1021
Notes on the Operation of Chevron's Doctrine
1022
Notes on the Relationship Between Chevron and State Farm
1029
Notes on the Wisdom (or Not) of Chervon's Doctrine
1033
Notes on the Relationship Between Chevron and Judicial Statutory Precedent
1039
Notes on the Practical Impact of Chevron
1042
A Final Thought on Chevron
1047
MCI Telecommunications Corp. v. American Telephone and Telegraph Co
1047
Notes on the Court's Approach to Statutory Interpretation
1056
Notes on MCI and Major Policy Changes
1070
Notes on the Approach Agencies Should Use When Interpreting Statutes
1073
Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers
1078
Notes on the Logic of the SWANCC Opinions
1087
Notes on Canons of Construction
1088
Notes on Federalism and Agency Action
1091
United States v. Mead Corporation
1098
Notes on the Logic of the Mead Opinions
1112
Notes on Putting the Mead Test for Chevron Deference into Practice
1115
Notes of the Theory of the Mead Decision
1121
Notes on Agencies' Interpretations of Their Own Regulations
1125
Massachusetts v. Environmental Protection Agency
1132
Notes on the Decision in Massachusetts v. EPA
1147
Notes on Judicial Review: Law or Politics?
1152
Federal Communications Commission v. Fox Television Stations, Inc
1159
Notes on the Logic of the Several Opinions in F.C.C. v. Fox
1182
Notes on the Authority of Original or Long-Standing Regulations
1184
Notes on Considering Constitutional Law in Administrative Proceedings
1186
ch. IX
Access to Judicial Review: Justiciability
1191
1.
Methods of Obtaining Review
1192
a.
Special Statutory Review
1193
b.
General Statutory Review
1195
c.
"Nonstatutory" Review
1198
(1).
Specific Relief: Injunctions, Declarations & the Prerogative Writs
1199
(2).
Damages Actions
1201
(3).
Special Problems of Suing States to Enforce Regulatory Obligations
1203
d.
Interim Relief
1205
2.
Standing
1207
a.
Basic Doctrinal Frameworks
1207
(1).
Standing and the Constitution
1209
Allen v. Wright
1210
Notes
1217
(2).
Standing Under the APA
1219
Association of Data Processing Service Organizations, Inc. (ADAPSO) v. Camp
1221
Notes
1224
Significant Cases & Notes on the Zones of Interest Requirement
1226
Notes
1232
b.
Defining Injury in Regulatory Settings
1234
(1).
Broadly Shared Injuries
1236
Federal Election Commission v. Akins
1236
Notes
1241
Significant Cases & Note on "Generalized Grievances" & Congress's Power to Create New Injuries
1242
Significant Cases & Notes on Associational Standing
1249
(2).
"Procedural Rights"
1256
Lujan v. Defenders of Wildlife
1256
Notes
1264
Notes on Standing & Article II
1267
c.
Traceability and Redressability in Regulatory Settings
1275
(1).
The Impact of Sanctions and Incentives
1276
Friends of the Earth, Inc. (FOE) v. Laidlaw Environmental Service, Inc
1276
Significant Cases
1283
Note
1286
Notes on the Relationship Between Defining the Injury and Finding Causation
1289
(2).
Probabilities, Risk & Incrementalism
1291
Massachusetts v. Environmental Protection Agency
1291
Notes
1299
3.
Reviewability
1302
a.
The Presumption That Agency Action Is Reviewable
1302
Abbott Laboratories v. Gardner
1303
Note
1307
b.
Statutory Preclusion
1308
Bowen v. Michigan Academy of Family Physicians
1308
Significant Case & Notes on Implied Preclusion of Review
1314
Significant Cases & Notes on Express Preclusion of Review
1319
Notes
1325
c.
"Committed to Agency Discretion by Law"
1327
Webster v. Doe
1327
Brief for Administrative Law Professors as Amici Curiae in Support of Petitioner's Petition for Certiorari
1333
Notes
1336
Notes on Reviewability of Agency Refusals to Act
1338
Note on the Constitutionality of Precluding Review
1342
4.
Timing
1347
Ticor Title Insurance Co. v. Federal Trade Commission
1348
a.
Exhaustion of Administrative Remedies
1356
Significant Cases & Notes on Common-Law, Prudential Exhaustion
1357
Significant Case & Note on Statutory, Non-Discretionary Exhaustion
1362
Notes on Exhaustion and Rulemaking
1363
Notes of Primary Jurisdiction
1365
b.
Finality
1366
c.
Ripeness
1369
Abbott Laboratories v. Gardner
1369
Gardner v. Toilet Goods Ass'n, Inc
1369
Toilet Goods Ass'n, Inc. v. Gardner
1369
d.
Special Problems in Reviewing Guidance Documents
1375
National Park Hospitality Ass'n v. Department of the Interior
1375
Notes
1377
APPENDIX
Constitution of the United States of America
1383
Administrative Procedure Act
1404
Freedom of Information Act
1423
Government in Sunshine Act
1439
Procedures of Consensus: Regulatory Negotiation
1444
Procedures of Consensus: Alternative Dispute Resolution
1452
Executive Order 12866 Regulatory Planning and Review
1461
Executive Order 13563 Improving Regulation and Regulatory Review
1476
Index
1481