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Administrative Law
University of Pennsylvania School of Law
Diver, Richard

Administrative Law
Spring 2002, Professor Diver
University Of Pennsylvania Law School
 
I. The Nature & Structure of Administrative Agencies
 
    Congress
 
 
     Agencies
 
 
President                                                                      Judiciary
 
 
A. Hierarchy of Legal Authority:
Constitution
Statute
Specific (“enabling act”) (e.g., OSH Act)
General (e.g., Administrative Procedure Act)
General rule: more specific statute trumps more general statute
Judicial precedent/interpretation
In theory federal courts don’t have common law making powers. Federal courts are supposed to do 2 things:
                                                               i.      Interpret Constitution
                                                             ii.      Interpret federal statutes (and interpret state law in diversity cases)
Presidential Executive Orders
President has Constitutional power to tell those under him what to do so long as it does not conflict with a higher legal authority. Most agencies are under the President.
Agency rules, orders, rulings
B. Structural Arrangements:
Regime
Policy
Pros.
Adjud.
Tort
Leg. & Ct.
Victim
Court
Crim.
Leg. & Ct.
DA
Court
Civil Reg.
Leg. & …
 
 
       Integrated
       AA
AA
AA
         Split
       AA1
AA1
AA2
 
       AA1
AA1
Court
 
       AA1
Victim
Court
C. Example: OSHA
The OSH Act:
Federal regulation, with optional contracts with states for enforcement
Command-and-control: mandatory “standards” backed by penalties
Broad delegation of standard-setting power
DOL as rule maker, inspector, prosecutor
OSHRC as adjudicator
Judicial review of standards and orders
Structure: Dept. of Labor as rule-maker, inspector, prosecutor; OSHRC as adjudicator
Compromise between 2 public interests:
                                                               i.      Coordination, administer-ability
                                                             ii.      Fairness, separation of powers
1.      Prosecution and policy making are separated in criminal law. If prosecutors defined elements of crimes and then their jobs were to enforce them there would be a conflict of interests.
a.       Multi-member body (like legislature) v. single person (like DA)
b.      Content may be shaped by fact that they have to

amend, more modern, so courts can take narrower view without Republic coming to a halt
What do courts look to in interpreting ambiguous text? (in order of importance)
Text
Intent of authors of text – usually revealed by other writings or things they have said
                                                               i.      Ie: Federalist papers, legislative history
Legislative history:
                                                               i.      Some have taken stance that legislative history is irrelevant because it was not what was enacted but only the opinion of those who enacted it.
                                                             ii.      Most courts do consider it relevant and give varying amounts of weight to varying parts of legislative histories.
Judicial precedent – how has language been interpreted by those who interpret it
Canons of interpretation – common law principles about how to read a statute
Evolving community norms, etc.