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Administrative Law
University of Pennsylvania School of Law
Lee, Sophia Z.

Lee Administrative Law Spring 2011
1.      Occupational Safety and Health Administration (OSHA) – enacted in 1970
a)      Declared purpose: “Assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. §651(b)
b)      Employers had to comply with “occupational safety and health standards” promulgated according to the Act. 29 U.S.C. §654(a)
c)      National consensus standards: standards already in general use that had been promulgated by recognized professional organizations. 29 U.S.C. §655(a); workplace sanitation for permanent workplaces
d)      Two issues OSHA must address:
i)        Does it make sense to spend time now on this regulation; and
ii)      If it does go forward, what rule should it propose for the subsequent public proceedings?
2.      The Basics of Administrative Law
a)      What are administrative agencies?
i)        Administrative agencies are all the authorities and operating units of the gov except for the constitutionally established entities. B/c administrative agencies are not established by the Constitution, they have to be created by statute.
b)      How are administrative agencies organized?
i)        The Constitution says very little about the details of the structure of the fed gov, so each agency is basically organized by the statute which puts it in business and tells it what its basic tasks are – these are often called the agency’s organic statutes.
ii)      At the top of agencies, two different patterns emerge:
(1)   Regulatory Commissions: Headed by multi-member bodies; usually free-standing bodies whose members can be removed from office by the President only for “cause,” and accordingly are sometimes called “independent agencies”
(a)    Ex. FTC
(2)   Single Administrator: Serves at the President’s pleasure, and are often nestled within larger entities that are headed by members of the President’s Cabinet
(a)    Ex. Smaller unit OHSA is encompassed by larger unit of the Department of Labor.
iii)    The overwhelming majority of administrative law requirements do not turn on the particularities of each agency’s organization.  Rather, they are responsibilities placed on all agencies simply b/c they are agencies.
c)      How do administrative agencies do their work?
i)        Individual agencies can set priorities, administer budgets, make rules, decide cases, and pursue enforcement actions.  In doing so, they exercise legislative, executive, and judicial powers.
d)      How do administrative agencies make regulations?
i)        The archetypal procedure is to conduct “notice and comment” rulemaking – allow for those outside the agency to comment on the proposal.
(1)   Staff members then review that rulemaking record before making any rule final.
(2)   *Final administrative rules have full legislative force; bind courts, agencies, and citizens to their terms.
e)      How do administrative agencies decide cases?
i)        Typically, agency cases are heard in the first instance before administrative law judges (ALJs).
ii)      Often, there is an intermediate level of review before a reasonably sheltered appeals panel.
iii)    In short, there is often a closer connection between overt policy authority and case decision in administrative adjudication than in courtroom adjudication.
(1)   This might be viewed as the genius of administrative adjudication, or its fatal flaw.
f)       How does administrative law contribute to social justice?
i)        Administrative law determines how benefits and burdens are distributed throughout society.
ii)      The more difficult question is whether administrative law conduces toward or away from social equality.
3.      The Development of the Administrative State
a)      Robert L. Rabin, “Federal Regulation in Historical Perspective”
i)        Populist Era: Limited responsibility of gov for econ well-being premised on autonomous market-controlled economy.
(1)   This generated certain “excessively competitive” practices such as the manufacture of products that seriously endangered health and safety or the setting of rates that were particularly discriminatory.
ii)      New Deal: Transformed earlier “weak” associational impulses into a commitment to permanent market stabilization activity by the federal government.
(1)   The New Deal developed the framework for a transformed federal responsibility to assure individual economic security; more generally, triggered a substantial shift in traditional conceptions of the separate spheres of public and private activity.
(2)   Distinctly American style of regulation, located btw opposing poles of public management and tort law.
(a)    It is a patchwork system that is resistant to any ideologically comprehensive rationale for regulation.
(3)   The New Deal conceived of government activity as a permanent bulwark against deep-rooted structural shortcomings in the market economy.
(a)    The New Deal ventured considerably beyond the regulatory model developed in the Commerce Act.
iii)    Roscoe Pound (1938): Widely publicized report by this chairman of the special committee of the ABA on administrative law.  He criticized the regulatory system for “administrative absolutism” and catalogued the suspect “tendencies” of administrative agencies:
(1)   To decide without a hearing.
(2)   To decide on the basis of matters not before the tribunal.
(3)   To decide on the basis of preformed opinions.
(4)   To disregard jurisdictional limits.
(5)   To do what will get by.
(6)   To mix up rulemaking, investigation, and prosecution, as well as the functions of advocate, judge, and enforcement authority.
iv)    The APA is essentially a highly conventional lawyer’s view of how to tame potentially unruly administrators. Two general decision making categories:
(1)   Rulemaking
(2)   Adjudication
(a)    The APA contains provisions for adjudication which set out a fairly elaborate scheme of procedural requirements utilizing the judicial hearing as its decision making model.
v)      In early 1960s, criticism of the APA emerged; two groups of critics:
(1)   One school contended that agencies were ignoring their mandate to establish clear and consistent policy guidelines – that economic regulation was adrift in a sea of irresolution.
(a)    Henry Friendly: Challenged agencies to abandon their practice of deciding major policy issues almost exclusively through case-by-case adjudication and exhorted regulators to take advantage of their unique capacity to engage in long-term planning through administrative rulemaking.
(2)   Another school of critics expressed concern about the oppressive tendencies of the regulatory system.
(a)    Charles Reich: Stressed the dramatic fashion in which gov largess had come to exercise a pervasive influence over the basic needs of the individual by setting the terms on which one might pursue an education, practice an occupation, or realize the expectation of economic security in later years.
(i)     While Friendly advocated greater reliance on rulemaking, Reich argued the need for more adequate procedural rights in adjudicatory settings.
vi)    Public Interest Era: National Environmental Policy Act of 1969 (NEPA) – represented a wholly different strategy for controlling administr

for scholars and policymakers thus becomes what procedural techniques for monitoring those delegated regulatory decision making powers would better ensure that the exercise of that power does not create more problems than it solves.
iii)    Between delegation and judicial review lies the black box of administrative process.  Reformers who would preserve the regulatory regime should open it.
4.      Perspectives on the Enterprise of Administrative Law
a)      Administrative law is closely connected to regulatory policy, but it is not the same thing.
b)      Felix Frankfurter, “The Task of Administrative Law”
i)        The concerns of administrative law include a systematic scrutiny of issues about agency decision making and a conscious effort towards their wise solution.
c)      James M. Landis, “The Administrative Process”
i)        Two tendencies in the expanding civilization of the late 19th century seem to me to foreshadow the need for methods of government different in kind from those that had prevailed in the past. These are the rise of industrialism and the rise of democracy.
ii)      Why administrative law is important: The judicial process suffers from several basic and more or less unchangeable characteristics.  One of these is its inability to maintain a longtime, uninterrupted interest in a relatively narrow and carefully defined area of economic and social activity.
d)      James O. Freedman, “Crisis and Legitimacy: The Administrative Process and American Government 29.
i)        Since the authority of any institution, as Max Weber so effectively argued, rests ultimately upon a popular belief in its legitimacy, substantial, persisting challenges to the legitimacy of governmental institutions must be regarded with concern.
ii)      Why have the federal administrative agencies failed to achieve a status of legitimacy as complete as that of other governmental institutions?  How to improve:
(1)   The legitimacy of the administrative process may be supported by public recognition that administrative agencies occupy an indispensable position in the constitutional scheme of government.
(2)   Public perceives the administrative process as embodying significant elements of political accountability.
(3)   Increases in effective performance (and publicized accounts of it).
(4)   Decision-making procedures are fair.
e)      Christopher Edley, “Administrative Law: Rethinking Judicial Control of Bureaucracy”
i)        The ‘administrative state is now inevitable because of the ever-lengthening agenda of complex public policy problems and the institutional limitations of legislatures.
ii)      Thus, the continuing dilemma for administrative law has been that the effort to impose Rule of Law constraints on agencies must contend with the critique that judicial review simply replaces the objectionable discretion of the administrator with the objectionable discretion of the judge.