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Administrative Law
University of Pennsylvania School of Law
Coglianese, Cary

Underlying Theory. 5
Types of Systems: How Do Industries Decide How to Behave?. 5
Why Regulation?. 5
Potential Goals of Administrative Law.. 6
Tools for Regulation. 6
Constraints. 6
Public Interest v. Public Choice. 6
Four Essential Elements of Traditional Model of Administrative Law.. 7
James Q. Wilson Model of Politics. 7
The Agency Problem.. 8
Theories of Statutory Interpretation. 8
Hierarchy of Sources of Statutory Interpretation. 9
History of Administrative Law.. 10
Before 1875. 10
1875 to 1930. 10
1930 to 1945: The New Deal and Beyond. 10
1945 to 1962. 10
1962 to 1980. 10
1980 and Beyond. 11
FDA v. Brown & Williamson and David Kessler’s A Question of Intent12
David Kessler: A Question of Intent12
Timeline. 13
FDA v. Brown & Williams, SCOTUS 2000. 15
Constitutional Theory & Limits on Power. 17
Nondelegation Doctrine. 17
Why do we have delegation at all?. 17
Lochner v. New York, SCOTUS 1905. 18
NIRA (National Industrial Recovery Act) of 1933. 18
A. L. A. Schechter Poultry Corp. v. United States, SCOTUS 1935. 18
Panama Refining Co. v. Ryan, SCOTUS 1935. 19
Carter v. Carter Coal, SCOTUS 1936. 19
Amalgamated Meat Cutters v. Connally, SCOTUS 1971. 19
Industrial Union Department, AFL-CIO v. American Petroleum Institute, SCOTUS 1980 20
American Trucking Association, Inc. v. EPA, D. C. Circuit Court 1999. 20
Whitman v. American Trucking Associations, Inc., SCOTUS 2001. 21
The Legislative Veto. 21
Immigration & Naturalization Service v. Chadha, SCOTUS 1983. 21
Executive Power & Agencies. 21
Removal Power: Officers. 21
Myers v. United States, SCOTUS 1926. 22
Humphrey’s Executor v. United States, SCOTUS 1935. 22
Removal Power: Independent Agencies. 22
Weiner v. United States, SCOTUS 1958. 22
Bowsher v. Synar, SCOTUS 1986. 23
Mistretta v. United States, SCOTUS 1989. 23
Four Solutions to Addressing the Principal-Agent Problem:24
What Power is left to Congress and the President?. 24
Procedures: Requirements of Due Process, the APA, & Executive Orders. 25
Where Do Administrative Procedures Come From?. 25
Due Process Analysis: Is There a Constitutional Protection?. 25
Goals of Due Process & Alternatives to Hearings. 26
Londoner v. Denver, SCOTUS 1908. 26
Bi-Metallic Investment Co. v. State Board of Equalization, SCOTUS 1915. 26
Adjudicative Facts & Legislative Facts. 27
Minnesota Board for Community Colleges v. Knight27
Southern Railway v. Virginia, SCOTUS 1933. 27
National Petroleum Refiners Association v. FTC, D. C. Circuit Court 1973. 28
Distinguishing Adjudication from Rulemaking. 28
Choosing Between Rulemaking & Adjudication (Agency Considerations)28
Formal On-the-Record Adjudication. 29
Formal On-the-Record Rulemaking. 29
Notice-and-Comment Rulemaking. 29
Informal Adjudication. 30
Goldberg v. Kelly, SCOTUS 1970. 30
Board of Regents of State College v. Roth, SCOTUS 1972. 31
Perry v. Sindermann, SCOTUS 1972. 31
Ingredients of Judicial Due Process (Judge Friendly)31
Matthews v. Eldridge, SCOTUS 1976. 32
Seven Potential Virtues of Rules. 32
Notice-and-Comment Rulemaking. 32
The Paper Hearing process. 32
FPC v. Texaco, Inc., SCOTUS 1964. 34
Heckler v. Campbell, SCOTUS 1983. 35
Sullivan v. Zerbly, SCOTUS 1990. 35
United States v. Nova Scotia Food Products Corp., 2nd Circuit Court 1977. 35
Weyerhauser Co. v. Costle, D. C. Circuit Court 1978. 36
American Medical Ass’n. v. United States, 1989. 36
Sierra Club v. Costle, 1981. 36
Independent U. S. Tanker Owners Comm. v. Dole, 1968. 36
Hybrid Procedures. 36
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, SCOTUS 1978 37
Exceptions to Notice-and-Comment Rulemaking. 37
Morton v. Ruiz, SCOTUS 1974. 38
American Hospital Association v. Bowen, D. C. Circuit Court 1987. 38
Appalachian Power Co. v. EPA, D. C. Circuit Court 2000. 38
1st Exemption: General Statements of Policy. 39
Community Nutrition Institute v. Young, D. C. Circuit Court 1987. 39
Important Tests: Notice-and-Comment Applies Where…… 39
Chamber of Commerce v. Department of Labor, 1999. 39
American Airlines v. Civil Aeronautics Board, 1996. 39
Professionals & Patients for Customized Care v. Shalala, 1995. 40
United States Telephone Association v. FCC, 1994. 40
2nd Exemption: Interpretive Rules. 40
American Mining Congress v. U. S. Department of Labor, 1993. 40
Jerri’s Ceramic Arts v. Consumer Product Safety Commission. 41
New York City Employees’ Retirement System.. 41
Hoctor v. U. S. Dept. of Agriculture. 41
3rd Exemption: Rules of “Procedure”. 42
Air Transport Association of America v. Dept. of Transportation. 42
National Whistleblowers Center v. NRC.. 42
Chamber of Commerce v. Dept. of Labor. 42
The “Good Cause” exception:43
Exemption for Direct Final Rulemaking. 43
The Record for Judicial Review of Rules within the Exceptions to Notice and Comment43
Standard of Review of Agency Fact-finding in Informal Rulemaking. 44
Additional Procedures: Executive Orders. 44
The 1995 Unfunded Mandate Reform Act46
The Paperwork Reduction Act46
UMRA §1535 (page 971)47
UMRA §1571 (page 972)47
Judicial Review: Standing. 48
Article III Standing. 48
The APA.. 48
Heckler v. Chaney, SCOTUS 1985. 48
Injury. 48
Association of Data Processing Service Organizations v. Camp, SCOTUS 1970. 49
Sierra Club v. Morton, SCOTUS 1972. 49
United States v. SCRAP, SCOTUS 1973. 49
Sierra Club v. EPA, SCOTUS 2002. 49
Lujan v. Defenders of Wildlife, SCOTUS 1992. 49
Allen v. Wright, SCOTUS 1984. 50
Northeastern Florida Chapter of Associated General Contractors v. Jacksonville, SCOTUS 1993 50
Friends of the Earth, Inc. v. Laidlaw, SCOTUS 2000. 50
Judicial Review: Statutory Interpretation and Chevron. 52
Statutory Interpretation & Review.. 52
NLRB v. Hearst Publications, SCOTUS 1944. 52
Skidmore v. Swift & Co., SCOTUS 1944. 53
Chevron, Inc v. Natural Resources Defense Council, SCOTUS 1984. 53
The Chevron “Two Step”. 54
Rationales for Chevron. 54
INS v. Cardoza Fonseca, SCOTUS 1987. 55
Young v. Community Nutrition Institute, SCOTUS 1986. 55
Chevron Step Zero: Does Chevron Apply?. 55
Christensen v. Harris County, SCOTUS 2000. 56
Rules v. Adjudications. 56
Updated Chevron Structure Under Mead. 57
Barnhart v. Walton, SCOTUS 2002. 57
Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, SCOTUS 1995. 58
MCI Telecommunications Corp. v. American Telephone & Telegraph Co., SCOTUS 1994 58
Public Citizens v. Young, D. C. Circuit Court 1987. 58
Chevron Step Two. 59
Ohio v. Department of Interior, SCOTUS 1989. 59
Questions Regarding Chevron and Statutory Interpretation. 59
Judicial Review: Roots of the “Hard Look”. 61
Arbitrary & Capricious Review.. 61
Hard Look Review.. 61
The Road to Overton Park. 62
Scenic Hudson Preservation Conference v. FPC (I), 2nd Circuit Court 1965. 62
Scenic Hudson Preservation Conference v. FPC (II), 2nd Circuit Court 1973. 63
Ethyl Corp. v. EPA, D. C. Circuit Court 1976. 63
Citizens to Preserve Overton Park, Inc. v. Volpe, SCOTUS 1971. 63
Consideration of Relevant Factors. 64
Pension Benefit Guaranty Corp. v. LTV Corp., SCOTUS 1990. 64
National Coalition Against Misuse of Pesticides v. Thomas, D. C. Circuit Court 1987. 64
Clear Error of Judgment64
Community Nutrition Institute v. Bergland, SCOTUS 1989. 64
Microcomputer Technology Institute v. Riley, SCOTUS 1998. 64
U. S. Air Tour Ass’n v. FAA, SCOTUS 2002. 65
Take-Home Lessons After Overton Park. 65
Judicial Review: Ex Parte Communications. 66
Ex Parte Communications. 66
Sangamon Valley Television Corp. v. United States, SCOTUS 1959. 66
Home Box Office, Inc. v. FCC, D. C. Circuit Court 1977. 66
Action for Children’s Television v. FCC, D. C. Circuit Court 1977. 67
Sierra Club v. Costle, D. C. Circuit Court 1981. 67
Radio Association v. Department of Transportation, SCOTUS 1995. 68
D. C. Federation of Civic Associations v. Volpe, SCOTUS 1972. 68
Portland Audubon v. Endangered Species Committee, 9th Circuit Court 1993. 68
Judicial Review: “Hard Look” Now.. 69
Motor Vehicle Manufacturers’ Association v. State Farm Mutual Automobile Insurance Company, SCOTUS 1983. 69
Corrosion Proof Fittings v. EPA, 5th Circuit Court 1991. 69
Impacts & Ossification. 71
Tension Between Politics and Expertise. 71
Factors That Might Slow Down Rulemaking. 71
Professor Coglianese’s Challenge to the Consensus. 72
Underlying Theory
Administrative law provides a set of procedures and implements a system of oversight
Outcomes affect interests of potential consumers, beneficiaries, and property rights of producing industry
 
Procedures
Actions
Oversight
Decision-making
Outcomes
 
Types of Systems: How Do Industries Decide How to Behave?
Insurance: may mute deterrence; penalties that cannot be insured against better incentivize safety
Common law: not necessary the best way to regulate; can only take action ex post; generalist judges lack time/expertise to really delve into the necessary science and specific information
Regulatory
Regulators impose rules on targets (businesses, individuals, non-profits) – interaction between government agencies & the outside word
Administrative law governs the regulators
Issuance/enforcement of rules
Creation of agencies & grants of power
 
Why Regulation?
Causal explanation: trace history and explain how regulatory agencies came about
Also a normative question: why should we regulate?
Justifications: examples of market failures/breakdowns
Monopolies/market power
Information asymmetry
Key justification for FDA regulation
Externalities/spillovers
Underlying assumption: the market is a good social institution
Efficient allocation of goods and services
Objective way of measuring what people value (important because resources are

disagree about what the text means
Is not actually consistent with the Constitutional scheme; the courts are supposed to understand what the text means, and they should use every weapon in the interpretive arsenal to figure that out
Often places emphasis on the ordinary meaning of terms, which can be confusing in statutes with high degrees of technicality or terms of art
Intentionalism
Whose intent?
Median Voter Theory (median has a very important application in bodies where decisions are made by majority vote)
Complicated by committees, vetoes, and filibusters
Shifts power to the “pivotal voter”
Majority Cycling (no stable equilibrium for determining intent)
Purposivism
Judge should choose the interpretation that best advances the underlying purpose of the legislation
 
Hierarchy of Sources of Statutory Interpretation
Text
The applicable provision
Judicial precedent for the applicable provision
Other text
Other provisions of the same act (Whole Act Rule)
Other laws at the time of enactment
Subsequent laws
Specific Legislative Intent (actual evidence of history leading up to the law)
Committee report (conference committee is best)
Sponsor statements
Committee hearings (statements by members better than non-members such as industry witnesses)
Floor debates
General history (what did we know about X in the year the law was passed?)
Overall purpose (“mischief rule” – statutes should be interpreted in ways that are nonsensical and would lead to absurd results)
 
History of Administrative Law
 
Before 1875
Traditionally viewed as relatively uninhibited laissez-faire
Professor Coglianese says take this view with a grain of salt; laissez-faire had more currency 1900-1920
Not as much federal regulation in the market as we have today
Administrative law as we know it today did not exist
Federal courts at time were called to regulate, but the only avenue was via old common-law writs
 
1875 to 1930
Great faith in expertise
“No Democratic or Republican way to pave a street”
Give these missions to those with technical know-how
Emergence of the traditional model of Administrative Law (rubber meets the road: the Transmission Belt Model)
Legislative mandate
Procedures in place to keep agency within mandate
Judicial review is available to keep agency within mandate
Agency will adopt procedures to facilitate judicial review
Focused on creating a connection between the political branches and the (ideally) non-political expert agencies
Progressive Era: breaking monopolies, combating the dangers of insufficient competition
 
1930 to 1945: The New Deal and Beyond
Broad delegations of authority
Continuation of prevailing belief in expertise
Expanded capacity of government to regulate securities, banks, insurance, etc.
The judiciary steps back in terms of substantive due process and other ways
Regulate conduct of businesses in the marketplace
 
1945 to 1962
Recognition of the need for standardization across agencies
The Federal Administrative Procedures Act (APA) (1946)
Establishes procedure for enactment of rules
Includes a mandatory oral/written response period
 
1962 to 1980
Major concerns about agency capture
Trend to make the process more transparent
Environmental, women’s, civil rights, consumer movements
Attempts to represent viewpoints other than that of the agency
Procedures designed to make the process more pluralistic
Extensive deregulation
Airlines
Telecommunications
Natural gas
New statutes enacted
Motor Vehicle Safety Act, Clean Air Act, Clean Water Act, etc.
 
1980 and Beyond
Created an institutionalized process for White House review of regulatory action
Executive Order 12-291 requires agencies to engage in cost-benefit analysis for “significant” rules
Analytic proceduralization of administrative law