ADMINISTRATIVE LAW: Fall 2015
Tuesday and Thursday 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 the relationship between administrative agencies and other branches of government. We will move on to a discussion of agency rulemaking, judicial review of agency legal interpretations and agency adjudication.
Required Text:
Popper, McKee, Varona and Harter, Administrative Law: A Contemporary Approach (2 nd Ed.)
Office Hours: I will have office hours on Tuesdays, Wednesdays and Thursdays (specific times to be determined when the final course schedule is released). I can also meet with students by appointment. Please send me an email to schedule a meeting other than during office hours.
Evaluation:
1. Exams. There will be a three-hour, open-book in-class examination at the end of this
course. It will be a combination of multiple choice and short “issue-spotting” legal analysis questions.
2. Class Participation. Your final grade in the course will be impacted by the quantity and quality of your participation in class discussion. The class will include “Socratic” review and discussion of cases. It will also involve extensive discussion and review of hypotheticals in the
text and Case Studies (for which supplemental material will be provided) as scheduled in the syllabus. Primary responsibility for Case Study and hypothetical discussion will be assigned to alternating groups of students at the beginning of the semester.
Students not assigned to a specific hypothetical discussion for a particular class will be expected 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 10AM on the day of the relevant
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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.
Students with consistent and exceptional class participation will received a one-half “grade bump” (i.e. from B+ to A-) from the exam score when the final course grade in calculated.
3. Case Studies. In additional to discussion of Hypotheticals in many class sessions, several classes will be set aside over the course of the semester for Case Studies. Case Studies will involve pre-assigned group presentations, discussions and debates on pre-determined topics over the course of the semester (see assignments listed below for Case Study topics). Student engagement and involvement during their assigned Case Study sessions will also be an important factor in evaluating class participation.
4. “Notice and Comment” Extra Credit. At any time during the semester any student can identify an actual regulation that has been proposed by an agency seeking “comment” from the public and provide substantive and detailed commentary to that regulation. If the student identifies the proposed regulation, and forwards their commentary to me, and provides a brief explanation of why they chose the regulation and the nature and significance of their comment, the student will receive significant “extra credit” at the end of the semester. Class time will be made available during the semester for these presentations as needed.
Course Schedule and Reading Assignments
(all assignments and page numbers are for the Popper, McKee text unless otherwise indicated)
Part I: Introduction
1. (8/25): Introduction to Administrative Process, pp. 15-31 [Hypo on p. 31]
2. (8/27): Independent and Executive Agencies, pp. 31-58 ( skip notes 1-4 on pp. 53-56 )
[Hypos p. 43 and p. 50]
3. (9/1): Separation of Powers, pp. 825-846; Case Study #1: The Independent Counsel
Part II:
4. (9/3):
Agency Rulemaking
5. (9/8):
The Administrative Procedure Act: History and Basic Provisions, pp. 58-75 [Hypo
p. 75]
Rulemaking under the APA: “Formal” and “Notice and Comment” Rulemaking, pp. 75-100 ( skim materials on “Formal” rulemaking, pp. 75-89, skip note 5 on p.
98 )[Hypo p. 98]
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6. (9/10): Judicial Review of Notice and Comment Rulemaking, pp. 117-137 (skip notes 6, 10 and 11) [Hypo p.137]): Judicial Review of Notice and Comment Rulemaking
(cont.), pp.139-154 [Hypo p. 145 and train safety information]; [Hypo p. 152]
7. (9/15): Case Study#2 – Michigan v. EPA (2015)
Part III: Judicial Review of Agency Statutory Interpretation
8. (9/17): Chevron, pp. 165-185 (skip notes 4 and 7 on pp. 174-76; skip notes 2,3,5 and 7 on pp.
182-84) [“Hypo” - DOL proposed overtime (supplemental material)]
9. (9/22): Redifining Chevron “Deference”, pp. 185-210 [Hypos on p. 208]
10. (9/24): Redifining Chevron (cont.), pp. 210-226 (skip notes 2-6 on pp. 218-19; skip all notes on pp. 224-26) [Hypo p. 209]
11. (9/29): Case Study #3 – King v. Burwell (2015)
Part IV: Reviewability
12. (10/1): Standing, pp.283-310 (skip all notes on pp. 300-304) [Hypo p. 309-10]
13. (10/6): Standing (cont.), pp. 310-318; 329-331 ( notes 4-6 ); 331-338
14. (10/8): Case Study #4: Immigration Executive Order [Texas v. US (2015)]
15. (10/13): Ripeness and Finality, pp. 338-358 ( skip notes 3-5 on pp. 349-351 )[Hypos pp. 346 and 348]
16. (10/15): Preclusion of Review, pp. 358-380
17. (10/20): Agency Inaction, pp. 380-392; 397-408 (skip notes 5-7 on pp. 390-92 and note 3-7
on pp. 403-06) [Hypo(supplemental materials)]
Part V: Agency Adjudication
18. (10/22): Basic Rules and Procedures, pp. 531-544
19. (10/27): Due Process, pp. 544-563 (skip notes 5-7 on pp. 553-54)
20. (10/29): Due Process (cont.), pp. 563-584 (skip notes 3 on pp. 580-84) [Hypo p. 571]
21. (11/3): Exhaustion, pp. 645-660 (skip notes 4 and 5 on pp. 650-51; and notes 4-5 on pp. 656-
60)
22. (11/5): Standards of Review, pp.660-680 [Hypo (supplemental materials)]
*23. (11/10): Adjudication of Employment Claims, pp. 857-874
24. (11/12): Adjudication of Immigration and Detention Claims, pp. 874-882
25. (11/17): Prosecutorial Discretion, pp. 892-911 ( skip note 4 on p. 911 )
26. (11/19): Case Study #5: Prosecutorial Discretion and Misconduct
27. (11/24): Administrative Adjudication and Schools, pp. 911-929 (skip note 5 on pp. 917-921)
28. (12/1): Administrative Adjudication and Prisoners (and Review), pp. 929-937
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