ADMINISTRATIVE LAW: Spring 2015
Monday and Wednesday 3:00-4:20 (Room
Professor Mark C. Niles
Room 350A
274-4309
(mniles@wcl.american.edu)
SYLLABUS AND COURSE INFORMATION
The Course:
This course will focus on the national regulatory regime and its impact of the other parts of the
national government and on the people. We will begin with a general discussion of the role of
regulation and administrative enforcement in our legal system and on the competing theories
that explain the evolution and modern function of the administrative state. We will then focus
on the relationship between the administrative state and the three main branches of
government: legislative, executive and judicial; and on the impact of the administrative
regulation in the people. We will close with a discussion of the extent of civil liability of
governments and their officials in claims brought by private citizens.
Required Text:
Cass, Diver, Beerman and Freeman, Administrative Law: Cases and Materials, 6th Ed. (Aspen
2011)
Office Hours: I will have office hours on Tuesdays and Thursdays. I can also meet with students
by appointment. Please send me an email to schedule a meeting other than during office
hours.
Exams, Grades and Class Participation: There will be a three-hour, open-book in-class
examination at the end of this course. Your grade will also be impacted by your class
participation (both attendance and the quantity and quality of contributions to class discussion)
with a particular focus on your participation in the Case Study class sessions scheduled
throughout the semester. Case Studies will involve pre-assigned group presentations,
discussions and debates on pre-determined topics over the course of the semester (see below
for Case Study topics).
I will expect students to be prepared to discuss the material in every class. Students may “pass”
from the class participation requirements of a particular class. Students will be allowed three
(3) passes over the course of the semester without incurring a negative impact on their class
participation grade. All passes must be communicated to me by email by 9AM on the day of
the relevant class. A student who is called on and is not prepared to discuss the assigned
material but has not passed for that class session will receive a substantial reduction in their
final course grade. Students may also receive excused absences for illness and other
appropriate circumstances.
Reading Assignments
(all assignments and page numbers are for the Cass, Diver text unless otherwise indicated)
Please observe that not all of the “notes” following the case reading in the text are assigned.
Please reference the assignment of each class period to determine which notes are not
assigned
I.
Introduction: The Administrative State: Evolution, Role and Function
1(1/7):
II.
The Origin and Role of Administrative Agencies: Cass/Diver: 1-15;
Niles, Punctuated Equilibrium: A Model for Administrative
Evolution, 44 J. Marshall L. Rev. 353 (2011)
Administrative Agencies and the Congress
2. (1/12):
3. (1/14):
Legislative Control of Agencies: 15-31(skip notes 2, 3 and
5-7 on pp. 30-33)
Legislative and Line Item Vetoes: 34-59 (skip notes 3 and 4 on pp.4849; read note 1 on p. 59)
MLK JR. HOLIDAY: NO CLASS
4. (1/21):
III.
CASE STUDY #1 (Federal and State Governments and the Line
Item Veto)
Administrative Agencies and the Executive
5. (1/26):
6. (1/28):
7. (2/2):
Appointment and Removal Power: 62-87 (skip notes 2, 3 and 4 on
pp. 66-69; and skip note 3 on p. 86)
Appointment and Removal (cont.): 88-103 (skip notes 4 and 5 on
pp. 102-3)
CASE STUDY #2 (Executive Orders and Presidential Signing
Statements) 531-537 (review 49-50); Introduction to APA and
Standards of Review: 111-127 (skip notes 1, 2, 6 and 7 on pp. 121125)
IV.
Administrative Agencies and the Courts
8. (2/4):
9. (2/9):
10. (2/11):
11. (2/16):
12. (2/18):
13. (2/23):
14. (2/25):
15. (3/2):
16. (3/4):
Arbitrary and Capricious Review: 127-154 (skip notes 3 and 5 on pp.
139-141; and skip notes 1 and 2 on p. 147; and skip notes 1 and 2 on p.
154)
Review of Questions of Law: (Chevron): 155-181 (skip notes 1, 2 and
3 on pp. 167-8 and MCI Telecom. V. AT&T on p. 889)
Review of Questions of Law (cont.): 181-198 (skip notes 2-7 on pp.
196-98)
Substantial Evidence Review: 199-227 (skip notes 2 and 4 on pp.
211-13)
Jurisdiction and Reviewability: 231-251 (skip notes 1-3 on pp. 24344; skip notes 3-5 on pp. 249-251)
Reviewability (cont.): 251-284 (skip notes 2, 4 and 5 on pp. 28284)
Standing: 297-329 (skip all notes on pp. 306-309; skip notes 2-4 on pp.
326-328)
Standing (cont.): 330-345 (skip note 3 on pp. 337-39)
CASE STUDY #3 (Standing for Congressional Lawsuits against the
President)
SPRING BREAK
17. (3/16):
Ripeness and Exhaustion of Remedies: 345-369 (skip notes 3-7 on
pp. 356-58)
V.
Administrative Function (The Agencies and the People)
18. (3/18):
19. (3/23):
20. (3/25):
21. (3/30):
22. (4/1):
23. (4/6):
24. (4/8):
Instruments and Authority for Agency Policy-making: 379-397
Agency Policy-making (cont.): 397-424 (skip notes 2, 4 and 5 on
pp. 408-411 and skip note 2 on p. 413)
Public Participation in Rulemaking: 424-447 (skip notes 2-4 on pp.
433-34 and skip notes 3 and 4 on p. 446)
Political Influence on Administrative Policy: 448-474 (skip notes 13 on pp. 458-59 and skip note 3 on p. 472-73)
CASE STUDY #4 (“Net Neutrality” and the FCC)
Hybrid Rulemaking and Alternative Rulemaking Models: 474-490;
513-528 (skip notes 2 and 3 on p. 486 and skip notes 5-8 on pp. 48990)
Agency Adjudication: Authority and Due Process: 569-593 (skip
note 2 on p. 579 and skip notes 2, 3 and 5 on pp. 592-93)
25. (4/13):
Due Process (cont.): 594-624 (skip notes 3 and 4 on pp. 600-01
and skip notes 2, 3 and 5 and 6 on p. 606-609 and skip notes 1 and 3 on
p. 615)
26. (4/15):
Private Litigation and Regulatory Enforcement: 738-762 (skip note
1 on p. 743 and skip notes 1-3 on pp. 750-51 and skip notes 1-4 on p.
756 and skip notes 3 and 4 on pp. 761-62)
27. (4/20):
28. (4/22):
Liability of Public Entities and Officers: 784-815 (skip all notes on
pp. 801-806); Niles, “Nothing But Mischief”: The Federal Tort
Claims Act and The Scope of Discretionary Immunity, 54
Administrative Law Review 1276 (2002).
CASE STUDY #5 (Civil Liability of Prosecutors for Wrongful
Conviction)