Legislation & Regulation – Fall 2010
Professor Stephenson
Section 3 (Pound 107, Wed-Fri, 8:20-9:40)
Course Description: This course is an introduction to lawmaking in the modern
administrative state. It will examine the way Congress and administrative agencies adopt
binding rules of law (statutes and regulations, respectively) and the way that
implementing institutions – courts and administrative agencies – interpret and apply these
laws. The course will consider the justifications for modern regulation, the structure of
the modern administrative state, the incentives that influence the behavior of the various
actors, and the legal rules that help to structure the relationships among Congress, the
agencies, and the courts.
SYLLABUS
Part I: Legislation
A. The Legislative Process and Theories of Interpretation
Wed., Sept. 1st – Introduction to Statutory Interpretation
pp. 2-3 (introductory note), 19-28, and 201-215 (United States v. Marshall,
through end of note 5)
Thurs., Sept. 2nd – Text and Purpose
pp. 28-49 (Riggs v. Palmer, Church of the Holy Trinity v. United States)
Fri., Sept. 3rd – Text and Purpose, cont’d
pp. 85-98 (United States v. Kirby, Public Citizen v. Department of Justice,
through end of note 2) and 49-67 (West Virginia University Hospitals v.
Casey)
Wed. Sept. 8th – Ordinary Meaning, Special Meaning, and Context
pp. 111-115 (Nix v. Hedden), 193-197 (Corning Glass Works v. Brennan), 200201 (notes 2 & 3 on Corning), and 126-140 (Smith v. United States)
[NO CLASS THURSDAY, SEPT. 9th – ROSH HASHANAH]
Fri., Sept 10th – The Legislative Process and Legislative History
pp. 140-142 (introductory note) and 152-176 (notes 1-4 after North Haven Bd or
Educ. v. Bell, Blanchard v. Bergeron, Continental Can Co. v. Chicago Truck
Drivers, through end of note 3).
1
Wed., Sept. 15th – The Legislative Process and Legislative History, cont’d
pp. 176-193 (remaining notes on Blanchard and Continental Can, Exxon Mobil v.
Allapattah), re-skim 193-197 (Corning Glass), 197-200 (note 1 on Corning)
B. Canons of Construction
Thurs., Sept. 16th – Semantic Canons
pp. 219-224 (McBoyle v. United States) and 233-249 (Gustafson v. Alloyd)
Fri., Sept. 17th – Semantic Canons, cont’d
pp. 224-233 (Silvers v. Sony Pictures) and 249-266 (People v. Smith, Circuit City
Stores v. Adams)
Wed., Sept. 22nd – Substantive Canons: Avoiding Constitutional Questions
pp. 266-288 (NLRB v. Catholic Bishop of Chicago)
Thurs., Sept. 23rd – Substantive Canons: State Sovereignty
pp. 288-306 (Gregory v. Ashcroft)
Fri., Sept. 24th – Substantive Canons: Preemption of State Law
pp. 306-327 (Rice v. Santa Fe Elevator, Cippollone v. Liggett Group)
Wed., Sept. 29th – Scope and Application of Substantive Canons
pp. 337-356 (Spector v. Norwegian Cruise Lines)
Part II: Regulation
A. The Constitutional Position of Administrative Agencies
Thurs., Sept. 30th – The Administrative State and the Delegation Problem
pp. 358-360 (introductory note), 376-394 (notes 4 & 5 after the Constitution
excerpt, J.W. Hampton, Jr. Co. v. United States, introductory note before
Schechter Poultry) and 407-418 (note 3 after Schechter Poultry, Whitman v.
American Trucking Ass’ns, Inc.)
2
Fri., Oct. 1st – The Administrative State and the Delegation Problem, cont’d
pp. 418-442 (Industrial Union Department, AFL-CIO v. American Petroleum
Institute)
Wed., Oct. 6th – Congressional Control of Agencies: The Legislative Veto
pp. 442-460 (INS v. Chadha) and 473-476 (section on other forms of
congressional control)
[NO CLASSES OCT. 7-8]
Wed., Oct 13th – Appointment and Removal of Agency Officials
pp. 476-478 (introductory note) and 486-521 (note 2 after Buckley v. Valeo,
Myers v. United States, Humphrey’s Executor v. United States)
Thurs., Oct. 14th – Appointment and Removal of Agency Officials, cont’d
pp. 522-547 (Morrison v. Olson) and supplementary handout (note on Free
Enterprise Fund v. PCAOB)
Fri., Oct. 15th – Presidential Oversight of the Administration
pp. 548-578 (section on presidential control of agencies)
B. The Administrative Rulemaking Process
Wed., Oct. 20th – The Administrative Procedure Act and the Forms of Agency Action
pp. 580-603 (United States v. Florida East Coast Railway)
[NO CLASSES OCT. 21-22 – CIV PRO MEETS IN OUR SLOT]
Mon., Oct 25th, 3:20-4:40, Austin West – Notice & Comment Rulemaking
pp. 604 (introductory note), 626-641 (Chocolate Manufacturers Ass’n v. Block)
Tues., Oct. 26th, 3:20-4:40, Austin West – Notice & Comment Rulemaking, cont’d
pp. 605-626 (United States v. Nova Scotia Food Products Corp.)
Wed., Oct. 27th – Alternatives to Notice & Comment Rulemaking: Adjudication
pp. 641-674 (SEC v. Chenery Corp., Bell Aerospace v. NLRB, NLRB v. Bell
Aerospace)
3
Thurs., Oct. 28th – Alternatives to Notice & Comment Rulemaking: Guidance Documents
pp. 674-697 (PG&E v. FPC, Chamber of Commerce v. Dep’t of Labor)
Fri., Oct 29th – Alternatives to Notice & Comment Rulemaking: Interpretive Rules
pp. 697-717 (AMC v. MSHA, Hoctor v. Dep’t of Agriculture)
C. Judicial Review of Agency Action
Wed., Nov. 3rd – Introduction to Judicial Review of Agency Decisions
pp. 717-739 (Ethyl Corp. v. EPA)
Thurs., Nov. 4th – Judicial (Non-)Regulation of Agency Procedures
pp. 739-756 (Vermont Yankee Nuclear Power Corp. v. NRDC)
Fri., Nov. 5th – “Hard Look” Review
pp. 756-790 (Motor Vehicles Manufacturers Ass’n v. State Farm)
Part III: Legal Interpretation in the Administrative State
Wed., Nov. 10th – Judicial Review of Agency Statutory Interpretation: Early Cases
pp. 792-814 (NLRB v. Hearst, Packard v. NLRB, Skidmore v. Swift & Co.)
Thurs., Nov. 11th – Judicial Review of Agency Statutory Interpretation: The Modern
Framework
pp. 814-835 (Chevron v. NLRB)
Fri., Nov. 12th – Deference and Textual Interpretation: Finding Ambiguity
pp. 835-853 (MCI v. AT&T)
Wed., Nov. 17th – Deference, Semantic Canons and Terms of Art
pp. 853-867 (Babbitt v. Sweet Home) and 885-888 (note on Chevron and
legislative history)
Thurs., Nov. 18th – Deference and Structural/Purposive Interpretation
pp. 867-885 (FDA v. Brown & Williamson Tobacco Corp.)
4
Fri., Nov. 19th – Deference and Substantive Canons: Constitutional Avoidance
pp. 888-900 (DeBartolo v. Fla. Gulf Coast Building & Trades, Rust v. Sullivan)
[NO CLASS NOV. 24-26 – THANKSGIVING BREAK]
Wed., Dec. 1st – Deference and Substantive Canons: State Autonomy
pp. 900-916 (SWANCC v. Army Corps of Engineers, Smiley v. Citibank)
Thurs., Dec. 2nd – Limits on Chevron’s Domain
pp. 916-940 (United States v. Mead Corp.)
Fri., Dec. 3rd – Flex class/review
5