Part II

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Article III Judges
Protections
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Lifetime tenure
Cannot reduce salary
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Cannot fire, only impeach
Cannot discipline
Why do we have these protections?
How are state judges different?
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ALJs
Civil service protections
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Can be fired
Can have salary lowered, but hard to do this
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Can set work standards and discipline
How are the pressures different than those on an
Article III judge?
What about contract ALJs that some states use?

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Discovery
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Not provided for by the APA
Some agencies allow discovery
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Why is less of an issue than in Art. III trials?
ALJ's opinion v. Art. III judge's opinion
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How is the ALJ's opinion different?
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Keep this in mind when we read Wooley
They do also decide matters of law, but it is not binding on the agency

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What is an initial decision, in contrast to a recommended decision?
Why did the EPA switch to allowing ALJ decisions to be final decisions if the agency did not act and there were no internal appeals in 45 days?
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Keep this in mind when we read Wooley
We will discuss agency rejection of ALJ opinions in the chapter on judicial review

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Why are these forbidden in Article III trials?
Why are they less of a problem in agency proceedings?
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How is the relationship between a litigant and the court different between a litigant and an agency?
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Why is knowledge by the judge of the issues and parties treated differently from a trial?
Are the APA restrictions on ex parte communications like those for Article III trials?

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No ex parte communications - 557(d)
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What is the extreme sanction for a party who violated this ban?
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What is the loophole for agency personnel?
Right to present evidence and subpoena witnesses
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Generally like a trial
Must be presided over by an ALJ or the Secretary

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How does this cure the loophole of communication with agency personnel?
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Why do we care?
Separation of function has very different results in a large federal agency than in small state agencies
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Federal - still in the agency
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States - often outside the agency (central panel), losing all expertise

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Can the EPA ALJ consult with an EPA scientist to better understand a case?
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557(d)
Can the EPA ALJ consult with an agency lawyer about law?
What about consulting with the lawyer prosecuting the case?
Can the ALJ consult with a party in the case, outside of the proceeding?

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Can the commissioner consult with the ALJ in an ongoing case?
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What is the key question?
What are the issues if the commissioner consults with the head prosecutor of the agency?
What about consulting with the heads of companies not currently before the agency?
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Can ex parte contacts occur before a proceeding?

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Not specified in the APA
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Some are specified in the agency enabling law
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Key is that the agency has to follow whatever procedures it sets up
Due process is the main concern, which is the subject of the next chapter
Informal adjudications are generally heard by an
AJ, not an ALJ

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Section 555 applies to all adjudications

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Persons who are required or entitled to appear before the agency may be represented by counsel
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Who pays for counsel?
What are the problems if interested persons who are not parties are allowed to intervene?
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What is the problem if they are not allowed?
What about nuclear power plant licensing?
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Who is interested?

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Using lawyers as an example, what are the basic legal requirements for licensing?
What are the enforcement advantages of requiring a license as compared to having the agency look for violations in an ongoing activity?
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Health food supplements v. drugs?
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Pit bull ordinances versus dangerous dog laws?

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How are the legal standards for initial licensing different from a license review or revocation?
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Why?
How are the potential parties different for a law license than for a TV station license?
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How does this change the adjudication?
What is the basic due process requirement for revoking a license?
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When can it be done without this process?
What process can be substituted?

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Section 558 applies to licensing
Who sits on state licensing boards?
What about the small ones?
What due process problems does this pose?
Does a central panel of ALJs solve this?
Think about this with Wooley