Administrative Law Summer 2015 Prof. David Franklin

Transcription

1 Administrative Law Summer 2015 Prof. David Franklin The Basics Class times: Mondays and Wednesdays, 5:50 to 8:30 p.m. in room 903 My office: Room 931A My office hours: Monday and Wednesday, 4 to 5 p.m. My phone number: My address: DFRANKL2@depaul.edu Required Reading The casebook for this course is Gary Lawson, Federal Administrative Law (6th ed. 2012). Casebook assignments in the syllabus are marked FAL. There is also a photocopied handout, ed separately with this syllabus and available on the law school website and in hard copy from the ninth floor receptionist. Reading assignments from the handout are marked H. The attached syllabus lists the reading assignments for the course. Unless otherwise instructed, please read one assignment per class. Please note that several chunks of reading are often combined into the assignment for a single class session. The Roman numerals and letters in the syllabus are for organizational purposes only. So, for example, the reading for our first class session is handout pp. 1-4; casebook pp. 1-9, 34-40, 42-48, 59-60, (from J.W. Hampton through Yakus); handout pp. 5-8; and casebook pp , (American Trucking). Don t worry we won t always be jumping around this much. To alleviate any confusion, I ve also included a simplified syllabus with just the page numbers. Please note that sometimes there is a lot of reading, especially in Part VI of the syllabus. Course Requirements You are required to (a) do the reading carefully and on time, (b) show up to class on time and participate thoughtfully in class discussion, and (c) take the final exam. You should be aware that I call on students in class by name, at random, and without warning. If you are unprepared to participate thoughtfully in a given class, you must tell me beforehand, preferably by . It is a bad idea to be unprepared. Two notes on in-class decorum: 1) Please arrive for class on time. A steady stream of latearriving students during the first ten minutes of class is extremely distracting. 2) Please do not use your laptop computer during class for things other than taking notes. This too is extremely distracting. I reserve the right to ban computers from the classroom. i

2 Grading Policy Your grade will be determined largely on the basis of the final exam. In addition, I reserve the right to add or subtract one grade step (e.g., from a B to a B+ or vice versa) based on classroom participation, at my sole discretion. Classroom Participation Classroom participation will be measured by the quality and not the quantity of your contributions. It is possible to have high quality participation without ever volunteering to speak, so long as your contributions are good when I call on you. Being unprepared to discuss assigned material when called upon is a form of low-quality participation. Asking good questions is a form of high-quality participation, but it does not relieve you of the obligation to answer the questions I ask. The Exam Anything we cover in the reading is fair game for the exam, even if we don t end up discussing it in class. It is likely to be a take-home exam. You will hear more about it around the middle of the course. Recommended Reading The casebook and handouts are the only required reading for the course. You are welcome to go beyond the required reading as long as you don t let your outside reading supplant careful study of the assigned material. The following books are recommended: William R. Andersen, Mastering Administrative Law. An up-to-date, well-organized overview with helpful diagrams. William F. Fox, Jr., Understanding Administrative Law. An engaging, easy-to-read overview. Ernest Gellhorn & Ronald M. Levin, Administrative Law and Process in a Nutshell. For those of you who like the nutshell format. Keith Werhan, Principles of Administrative Law. Clear and concise explanations of the major concepts. William F. Funk & Richard H. Seamon, Administrative Law: Examples & Explanations. Well-organized with lots of helpful hypos. ii

3 Administrative Law Summer 2015 Prof. David Franklin Syllabus Class #1 (Monday, June 1) I. Introduction What is an agency?: H 1-4; FAL 1-8; FAL II. The administrative state and the separation of powers A. The relation of agencies to Congress The rise and fall of the nondelegation doctrine: U.S. Const., Art. I (FAL 42-45); FAL 59-60, (from J.W. Hampton through Yakus); H 5-8; FAL 75-85, Class #2 (Wednesday, June 3) Dealing with delegations I the problem of legislative precision: FAL (including Note on the Cotton Dust Case); H 9-12 Dealing with delegations II other legislative responses, and a taste of the scholarly debate: FAL ; skim FAL ; FAL Class #3 (Monday, June 8) B. The relation of agencies to the President Appointment, and presidential control over agency action: U.S. Const., art. II (FAL 45-47); FAL , , ; skim FAL Removal: FAL ; H 13 Class #4 (Wednesday, June 10) C. The relation of agencies to the judiciary, and the separation of powers The role of Article III: U.S. Const., art. III (FAL ); FAL Separation of powers and separation of functions: FAL III. An introduction to administrative procedure A. Principles of administrative common law iii

4 The requirement of consistency: FAL , ( The Law of Chenery I ), ; H Class #5 (Monday, June 15) Estoppel and the problem of reliance: H B. Rules, orders, and how to choose between them The distinction between rulemaking and adjudication: FAL Class #6 (Wednesday, June 17) May the agency make rules? H Must the agency make rules? FAL , , IV. Agency adjudication and the Due Process Clause The emergence of the new due process : H 34, FAL , Class #7 (Monday, June 22) When is process due? FAL , How much process is due? FAL , Class #8 (Wednesday, June 24) V. The Administrative Procedure Act and its procedural requirements Introduction to the APA, and triggering formal rulemaking: FAL , ; H 35; skim FAL The rise and fall of hybrid rulemaking : FAL Class #9 (Monday, June 29) Exceptions to 553: FAL , , ; H VI. Judicial review of agency action A. Scope of review Overview, and review of agency factual findings: FAL Class #10 (Wednesday, July 1) Review of agency legal conclusions I to the Chevron station: FAL , ; H 40; FAL ; H iv

5 Review of agency legal conclusions II Chevron in action: FAL ; H 48-52; FAL Class #11 (Monday, July 6) Review of agency legal conclusions III Chevron Step Zero : FAL , , Review of agency legal conclusions IV Chevron s domain: FAL Class #12 (Wednesday, July 8) Review of agency discretion and policymaking I the hard look doctrine: FAL , , ; H 53 A hard look case study the Plan B contraceptive case: H Class #13 (Monday, July 13) B. Availability and timing of review Preclusion of review: FAL , ; H The problem of agency inaction: H 69-75; FAL ; H Class #14 (Wednesday, July 15) Exhaustion and ripeness: FAL , Statutory ( zone of interests ) standing: FAL , , v

6 Administrative Law Summer 2015 Prof. David Franklin Simplified Syllabus Class #1 (Monday, June 1) H 1-4; FAL 1-8; FAL U.S. Const., Art. I (FAL 42-45); FAL 59-60, (from J.W. Hampton through Yakus); H 5-8; FAL 75-85, Class #2 (Wednesday, June 3) FAL (including Note on the Cotton Dust Case); H 9-12 FAL ; skim FAL ; FAL Class #3 (Monday, June 8) U.S. Const., art. II (FAL 45-47); FAL , , ; skim FAL FAL ; H 13 Class #4 (Wednesday, June 10) U.S. Const., art. III (FAL ); FAL FAL FAL , ( The Law of Chenery I ), ; H Class #5 (Monday, June 15) H FAL Class #6 (Wednesday, June 17) H FAL , , H 34, FAL , Class #7 (Monday, June 22) FAL , FAL , vi

7 Class #8 (Wednesday, June 24) FAL , ; H 35; skim FAL FAL Class #9 (Monday, June 29) FAL , , , H FAL Class #10 (Wednesday, July 1) FAL , ; H 40; FAL ; H FAL ; H 48-52; FAL Class #11 (Monday, July 6) FAL , , FAL Class #12 (Wednesday, July 8) FAL , , ; H 53 H Class #13 (Monday, July 13) FAL , ; H H 69-75; FAL ; H Class #14 (Wednesday, July 15) FAL , FAL , , vii