Administrative Law – Fall 2009
Professor Stephenson
Course Description: This course will study law making and law application by executive
departments of government. Using the material covered in the first-year “Legislation and
Regulation” course as a foundation, this class will cover a variety of topics, including the
legal framework (both constitutional and statutory) that governs administrative
adjudication; the proper role of agencies in interpreting statutory and regulatory law;
judicial review of agency decisions; public participation in agency rulemaking; and nontraditional approaches to regulation, including negotiation and privatization. The central
theme of the course is how the law manages the tension between “rule of law” values
(e.g., procedural regularity, accountability, and substantive limits on arbitrary action) and
the desire for flexible, effective administrative governance.
The casebook is Strauss, Rakoff & Farina eds., Gellhorn and Byse’s Administrative Law
(rev’d 10th ed. 2003). Casebook readings are marked “CB.” There is also a supplemental
reading packet, available from the Copy Center. Readings from the supplement are
marked “Supp.”
Syllabus
I. Administrative Adjudication
A. Constitutional Issues
Wed., Sept. 2nd – Article III: The Right to a Judicial Forum
CB 118-138 (CFTC v. Schor)
Tues., Sept. 8th – Due Process: The Right to a Hearing
CB 767-769 (introductory note on Due Process)
Supp. 5-6 (Yamataya v. Fisher)
CB 238-248 (Londoner v. Denver, Bi-Metallic v. State Board of Equalization)
CB 783-790 (Goldberg v. Kelly)
CB 837-851 (Matthews v. Eldridge)
Mon., Sept. 21st – The Right to a Neutral Adjudicator
CB 407-423 (FTC v. Cement Institute, Withrow v. Larkin)
CB 254-262 (Wong Yang Sung v. McGrath)
Supp. 7-17 (Marcello v. Bonds, Ass’n of ALJs v. Heckler)
CB 1347-1350 (APA §§ 3105, 7521, 5372, 3344, 1305)
CB 1344 (APA §559)
B. Administrative Procedure Act (APA) Regulation of Agency Adjudication
Tues., Sept. 22nd – APA Formal Adjudication
Supp. 18-30 (Seacoast Anti-Pollution League v. Costle, Chemical Waste
Management v. EPA, Dominion Energy v. Johnson)
CB 334-345 (Office of Communication of United Church of Christ v. FCC,
Envirocare of Utah v. NRC)
CB 1337-1344 (APA §§ 554, 556, 557)
[No class Mon., Sept. 28th – Yom Kippur]
Tues., Sept. 29th – APA Formal Adjudication, cont’d
Supp. 31-36 (Seacoast Anti-Pollution League v. Costle)
CB 351-374 (Castillo-Villagra v. INS; Armstrong v. CFTC)
Fri., Oct. 2nd, 3:00-5:00 [make-up class, room TBA] – Adjudicative Consistency and
Retroactivity
CB 908-916 (Shaw’s Supermarkets v. NLRB)
CB 556-563 (SEC v. Chenery Corp.)
CB 566-571 (Bell Aerospace v. NLRB, NLRB v. Bell Aerospace)
Supp. 37-56 (Laidlaw v. NLRB; Retail, Wholesale, and Department Store Union
v. NLRB; Citizens to Save Spencer County v. EPA, Bowen v. Georgetown
University Hospital)
Mon., Oct. 5th – Review of Agency Fact-Finding in Adjudication
CB 936-965 (Universal Camera Corp. v. NLRB, Allentown Mack Sales and
Service v. NLRB)
CB 1347 (APA § 706)
II. Administrative Interpretations of Law
Tues., Oct. 6th – Chevron and Interpretive Canons
CB 1026-1045 (Chevron v. NRDC) (skim)
Supp. 57-93 (DeBartolo v. Florida Gulf Coast Building & Trades, Rust v.
Sullivan, Morales-Izquierdo v. Gonzales, SWANCC v. Army Corps of
Engineers, Virginia Department of Education v. Riley)
[No class Mon., Oct. 12th – Columbus Day]
Tues., Oct. 13th – Chevron’s Domain
Supp. 94-103 (Adams Fruit Co. v. Barrett, Christensen v. Harris County)
CB 1068-1091 (United States v. Mead Corporation)
Mon., Oct. 19th – Deference and Interpretive Consistency
Supp. 104-125 (INS v. Cardoza-Fonseca, Neal v. United States, Nat’l Cable &
Telecom Ass’n v. Brand X Internet Services)
Tues., Oct. 20th – Deference and Overlapping Jurisdiction
Supp. 126-140 (Rapaport v. Office of Thrift Supervision, Martin v. OSHRC,
Collins v. NTSB)
Mon., Oct. 26th – Agency Interpretation of Agency Regulations
Supp. 141-155 (Auer v. Robbins, Thomas Jefferson University v. Shalala,
Paralyzed Veterans of America v. D.C. Arena, Paragon Health Network v.
Thompson)
Tues., Oct. 27th – Complex Questions of Agency Legal Interpretation
Supp. 156-208 (Oregon v. Ashcroft, Gonzales v. Oregon)
III.
Participation in Administrative Decision-Making
A. Presidential Influence on Rulemaking
Mon., Nov. 2nd – Presidential Oversight of Rulemaking
CB 638-663 (discussion of OIRA review)
CB 1370-1382 (Executive Order 12,866)
Supp. 209-211 (Excerpts from Executive Order 13,422)
CB 212-222 (discussion of presidential directive authority)
B. Sub-Delegation and Consultation
Tues., Nov. 3rd – Sub-Delegation of Agency Functions
Supp. 212-238 (Batterton v. Francis; EMR Network v. FCC; U.S. Telecom Ass’n
v. FCC; Towne Construction Co. v. OSHRC; Pistachio Group v. United States;
Hilario-Paulino v. Pugh)
Mon., Nov. 9th – Advisory Committees
Supp. 239-276 (Public Citizen v. DOJ, Association of American Physicians &
Surgeons v. Clinton, In re Cheney)
C. Transparency
Tues., Nov. 10th – Freedom of Information and Government in the Sunshine
CB 733-766 (NLRB v. Sears Roebuck & Co., Critical Mass Energy Project v.
NRC, Chrysler Corp. v. Brown)
Supp. 277-279 (FCC v. ITT World Communications)
CB 1323-1336 (APA § 552 (Freedom of Information Act) (skim)
CB 1350-1354 (APA § 552b (Government in the Sunshine Act) (skim)
IV. Access to Judicial Review of Administrative Decisions
A. Standing
Mon., Nov. 16th – Constitutional Standing
CB 1139-1162 (Lujan v. Defenders of Wildlife, FEC v. Akins)
Supp. 280-293 (Massachusetts v. EPA)
Tues., Nov. 17th – Statutory Standing
CB 1100-1106 (introduction to statutory standing and reviewability)
CB 1128-1139 (Association of Data Processing Service Organizations v. Camp)
CB 1162-1172 (Nat’l Credit Trust Union Admin. v. First National Bank & Trust)
CB 1345-1346 (APA §§ 701, 702, 704)
B. Reviewability
Mon., Nov. 23rd – Statutory Preclusion of Review
CB 1181-1184 (Abbot Laboratories v. Gardner (Part I))
CB 1188-1206 (Block v. Community Nutrition Institute, Bowen v. Michigan
Academy of Family Physicians)
Tues., Nov. 24th – Unreviewable Discretionary Acts
Supp. 294-305 (Heckler v. Chaney)
CB 1209-1228 (Webster v. Doe)
Mon., Nov. 30th – Timing Issues: Ripeness, Finality, Exhaustion
CB 1184-1188 (Abbot Laboratories v. Gardner (Part II))
CB 1229-1257 (Ticor Title Insurance Co. v. FTC)
Supp. 306-315 (Norton v. Southern Utah Wilderness Alliance, ACLU v. NSA)
[No class Tuesday, Dec. 1st due to a conflict with my 1L class. (For 1Ls, Dec. 1st is on a
Wednesday schedule.)]
Fri., Dec. 4th (3:00-5:00 p.m., room TBA) & Mon., Dec. 7th – Flex Classes/Review