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Administrative Law
University of San Diego School of Law
Rappaport, Michael B.

General tips for this class:
· Understand main opinion and dissents.
· Major cases: Londoner, VT & Yankee, Overton Park, Florida East Coast Railways, Chevron, Mead, Abbot Labs
· Read the APA, arrange the material in relation to the APA, whether it applies, and if so, how.
· Understand the historical progression of administrative law. Being able to arrange the general climate of the different time frames will help in understanding why the courts decided how they did at different times.
· Go to class. Exam was based on what he covers in class. Exam was closed book. Therefore, attendance, good class notes, and participation is key.

AAs change throughout time
· Statutory Interpretation
o Can change radically
§ Chadra case: massive overturn of how AA function
Administrative Procedures Act (APA)
· 1) procedural limit
o notice
o comments
o sue agency if not follow procedure
· 2) substantive limit: scope of judicial review
o statute is interpreted incorrectly
o factually incorrect assumption
o bad policy
o statute
3) limit on judicial review
· timing
· who can bring action: mootness, ripeness, standing

Congress’s Legislative Power over AAs
1) Appropriations Law
· Amount of $ given to the AA to run AA
2) Substantive Law
· interprets what an “unfair act of competition” is
· defines enforcement actions to prevent an “unfair act of competition”
3) Organic Statute
· creates what the AA can do
· Congress creates the AA, Congress can kill the AA
· FTC is created to prohibit “unfair acts of competition”

Presidential Power over AAs
President can lobby for changes in regulation
Can President direct FTC about what to do?
· It depends

Commissions

Cabinets

Independent of President

Dependent on President

P can appoint w/ Senate approval

P can dismiss members of Cabinet

Serve “at the pleasure” of the President

1-person agencies

President CANNOT direct, President CANNOT dismiss

President can direct
President can dismiss

President has control over
agency but has no obligation to execute it

Office of Management and Budget
Agency devoted to help President control AAs
1) AAs issue regulations, OMB does C/B analysis. Benefits MUST be greater than Costs!
· Send proposals to OMB
· Look at C/B analysis
2) Budget: OMB makes funding decisions

Judicial Review
Can go to District Court or DC Circuit Court
Jurisdiction
1) place of business of the company being regulated
2) D.C. –
· place of the AA
o always available, thus DC circuit has a specialty in administrative law
o 1960/70s: controlled by activist judges
o 1980s/90s: controlled by conservatives
· Companies go to DC so not to have splits in circuite courts
· Supreme Court will probably never resolve a split
· No want different case law/ No want different circuits

When you think your side is

Right

Wrong

go to D.C. because you want a knowledgeable court

DO NOT GO to D.C. because you want to go to a non-knowledgeable court to keep the case murky

Judicial Review

Article III judge

Non-Article III judge: ALJ

Enforcement action within agency adjudicated by AA

No lifetime tenure

Can cut salary

No final say, decision can be reversed by AA

Plaintiff appeals ALJ decision. 1) appeal to FTC commission; 2) then appeal to circuit court

Is an AA constitutional? Yes
But has le

ence
· AAs good= specialized
· Courts are deferential to AAs
o Judicial review of AA decision curtailed
o Expertise of AAs weighed heavily
Theorists
· Eastman:
· commissions are independent; politics should not matter once appointed
· AAs insolated from Politics, can trust them not to be partisan; neutral experts

· Landis:
· men of professional attainment with government as a career; hope that these experts will make the best decisions
· Faith in AAs, solve problems; strict SOP is too slow
· Litigation, too slow; courts need to be specialists; free up AAs

1945 to 1962: Administrative Procedure Act
· NO constitutional restraints, therefore statutory restraints
· APA=
· compromise between New Dealers and those critical of AAs
· response to criticism of unfairness of AAs

1962-1980: Public Interest Administrative law
· Lots of regulation and lots of criticism
· Goal: protect public health and safety and to counteract discrimination against various disadvantaged groups
· Capture Theory – AAs captured by the people they are regulating
· Industry v. public concern. Industry wins
· Little guy does not have as much stake in what AAs do
· Example
· 4 car companies are regulated; 100 million drivers
o $80M cost v $100M benefit
o Concentrated interests
§ Car companies get $20M of benefits ($5M each) for knowing the AA regulations, drivers only get $1 of benefit
o Drivers are rationally ignorant because it is not worth spending $1 to find out what AAs are doing
· WORRY AAs CONTROLLED BY THE BUSINESSES THEY SHOULD REGULATE
·
·
Theorists
Berstein
· Lifecycle of AAs
o Young agency idealistic, old agency protect industry
o agencies all well and good, but eventually they get stuck

Noll:
· hard to battle agencies alone; over-responsive to the interests they are supposed to control
· Need tacit approval of industry to have agency

Solution to Capture
1) Right
· Deregulate—change functions of AAs