Administrative Law

(Study Tips, Dealing With Stress, Maintaining a Social Life, Financial Aid, Internships, Bar Exam, Careers in Law . . . )
User avatar
stillwater
Posts: 3811
Joined: Tue Jun 28, 2011 2:59 pm

Re: Administrative Law

Postby stillwater » Sun May 05, 2013 2:55 pm

kalvano wrote:On an exam, always make sure to argue whether the agency exceeded the scope of its authority statute, as well.

But really, the Chevron language will be obvious. "Based on our reading of XYZ statute..." or something like that. The important thing is to differentiate between an agency interpreting a statute and making a rule or adjudication.


So if its jsut the interpretation of the statute, you'll go through Mead and see if its Chevron or Skidmore. If its N+C rulemaking, you'll check out arbitrary and capricious. This is part of stat reg so it's incredibly basic and shallow but is that the general gist? We only talked about those 3 tests.

User avatar
kalvano
Posts: 11720
Joined: Mon Sep 07, 2009 2:24 am

Re: Administrative Law

Postby kalvano » Sun May 05, 2013 3:24 pm

Everything you need:

http://sdrv.ms/16EGi1G

User avatar
JamMasterJ
Posts: 6688
Joined: Sat Jan 29, 2011 7:17 pm

Re: Administrative Law

Postby JamMasterJ » Sun May 05, 2013 4:53 pm

kalvano wrote:On an exam, always make sure to argue whether the agency exceeded the scope of its authority statute, as well.

But really, the Chevron language will be obvious. "Based on our reading of XYZ statute..." or something like that. The important thing is to differentiate between an agency interpreting a statute and making a rule or adjudication.

OK for some reason, this clarified everything for me.

User avatar
JamMasterJ
Posts: 6688
Joined: Sat Jan 29, 2011 7:17 pm

Re: Administrative Law

Postby JamMasterJ » Sun May 05, 2013 4:55 pm

Damn, actual admin law seems way harder than LegReg

User avatar
kalvano
Posts: 11720
Joined: Mon Sep 07, 2009 2:24 am

Re: Administrative Law

Postby kalvano » Sun May 05, 2013 5:22 pm

Admin Law has been considered one of the hardest classes in law school since forever. When my dad was in law school 50 years ago, he said it was a nightmare class, and that was before Chevron and all that fun stuff.

Again, and I know I plug this book all the time, but the Beerman "Inside Admin Law: What Matters and Why" is phenomenal.

User avatar
kalvano
Posts: 11720
Joined: Mon Sep 07, 2009 2:24 am

Re: Administrative Law

Postby kalvano » Sun May 05, 2013 5:25 pm

Also, you can probably get a few points extra if you have to argue against an agency's rule/interpretation/adjudication/whatever if you make sure to add a couple sentences about non-delegation and whether the agency was properly delegated authority and the officer was properly appointed. Sometimes that will be a big point to make, but usually not, but it's really important and can get you those extra few points that make the difference.

User avatar
ph14
Posts: 3224
Joined: Mon Sep 12, 2011 11:15 pm

Re: Administrative Law

Postby ph14 » Sun May 05, 2013 6:47 pm

What standard of review where it isn't really either a legal interpretation nor a question of whether it was supported by factual evidence. For example, if the rule states that the agency may impose additional measures where "reasonably necessary to ensure adequate levels of safety." The regulated party then challenges the agency action as not being reasonably necessary.

Assume that the additional measures were imposed in a formal adjudication. What standard of review is going to apply?

User avatar
ph14
Posts: 3224
Joined: Mon Sep 12, 2011 11:15 pm

Re: Administrative Law

Postby ph14 » Sun May 05, 2013 8:21 pm

Another: Administrative exhaustion may depend on whether the APA or another statute brings the cause of action. Under Darby v. Cisneros, where APA 704 provides the cause of action, unless a statute or regulation requires exhaustion, a court cannot require exhaustion before judicial review. When another statute provides the cause of action, though, an agency can require exhaustion of remedies. My question is: how do you know which statute is providing you the cause of action?

delusional
Posts: 1190
Joined: Thu Jul 15, 2010 7:57 pm

Re: Administrative Law

Postby delusional » Sun May 05, 2013 10:05 pm

ph14 wrote:What standard of review where it isn't really either a legal interpretation nor a question of whether it was supported by factual evidence. For example, if the rule states that the agency may impose additional measures where "reasonably necessary to ensure adequate levels of safety." The regulated party then challenges the agency action as not being reasonably necessary.

Assume that the additional measures were imposed in a formal adjudication. What standard of review is going to apply?
Stick in something about the difference between law and fact being unclear on a mixed question like this. Then the agency will get Chevron deference, or if you prefer, American Trucking deference. The agency would have gotten deference under Hearst too, but I think it was optional.
Under Chevron step one the Court may look to the purpose, structure, and legislative history, because the text is obviously ambiguous.
Under Chevron step two they would have to show why it was reasonably necessary, and it might fail if there is some purpose in the law that it contradicts. Ohio v. Department of Interior. Yeah, I don't get the difference between purpose in step one and purpose in step two, if there is a difference.
Of course, it would also fail if it were arbitrary/capricious, which is arguably the same as supported by substantial evidence, so I think we've touched em all.

User avatar
3|ink
Posts: 7331
Joined: Wed Dec 16, 2009 5:23 pm

Re: Administrative Law

Postby 3|ink » Sun May 05, 2013 10:49 pm

ph14 wrote:What standard of review where it isn't really either a legal interpretation nor a question of whether it was supported by factual evidence. For example, if the rule states that the agency may impose additional measures where "reasonably necessary to ensure adequate levels of safety." The regulated party then challenges the agency action as not being reasonably necessary.

Assume that the additional measures were imposed in a formal adjudication. What standard of review is going to apply?

Why wouldn't that be a question of fact?

Unrelated to the scope question, that sounds exactly like the Benzine case to me. (Industrial Union Dep v. American Petroleum.)

kalvano wrote:Again, and I know I plug this book all the time, but the Beerman "Inside Admin Law: What Matters and Why" is phenomenal.

TYFT. Bought it earlier this semester after you recommended it in another thread. It's probably the only useful supplement I've ever used.

User avatar
ph14
Posts: 3224
Joined: Mon Sep 12, 2011 11:15 pm

Re: Administrative Law

Postby ph14 » Mon May 06, 2013 10:56 am

3|ink wrote:
ph14 wrote:What standard of review where it isn't really either a legal interpretation nor a question of whether it was supported by factual evidence. For example, if the rule states that the agency may impose additional measures where "reasonably necessary to ensure adequate levels of safety." The regulated party then challenges the agency action as not being reasonably necessary.

Assume that the additional measures were imposed in a formal adjudication. What standard of review is going to apply?

Why wouldn't that be a question of fact?

Unrelated to the scope question, that sounds exactly like the Benzine case to me. (Industrial Union Dep v. American Petroleum.)



Well, my thinking is that could plausibly be viewed as an agency legal interpretation of the word "reasonably necessary."

User avatar
JamMasterJ
Posts: 6688
Joined: Sat Jan 29, 2011 7:17 pm

Re: Administrative Law

Postby JamMasterJ » Mon May 06, 2013 11:20 am

ph14 wrote:
3|ink wrote:
ph14 wrote:What standard of review where it isn't really either a legal interpretation nor a question of whether it was supported by factual evidence. For example, if the rule states that the agency may impose additional measures where "reasonably necessary to ensure adequate levels of safety." The regulated party then challenges the agency action as not being reasonably necessary.

Assume that the additional measures were imposed in a formal adjudication. What standard of review is going to apply?

Why wouldn't that be a question of fact?

Unrelated to the scope question, that sounds exactly like the Benzine case to me. (Industrial Union Dep v. American Petroleum.)



Well, my thinking is that could plausibly be viewed as an agency legal interpretation of the word "reasonably necessary."

that was my first impression as well. On the other side though, you could say it's not an interpretation of what it means to be "reasonably necessary" but whether this thing falls into the class of things that happen to be reasonably necessary for ensuring adequate levels. When the question is something like this rather than determining what it means to be reasonably necessary or what the definition of adequate levels of safety are.

Again it's arguable, but probably more the latter IMO

User avatar
ph14
Posts: 3224
Joined: Mon Sep 12, 2011 11:15 pm

Re: Administrative Law

Postby ph14 » Mon May 06, 2013 11:33 am

JamMasterJ wrote:
ph14 wrote:
3|ink wrote:
ph14 wrote:What standard of review where it isn't really either a legal interpretation nor a question of whether it was supported by factual evidence. For example, if the rule states that the agency may impose additional measures where "reasonably necessary to ensure adequate levels of safety." The regulated party then challenges the agency action as not being reasonably necessary.

Assume that the additional measures were imposed in a formal adjudication. What standard of review is going to apply?

Why wouldn't that be a question of fact?

Unrelated to the scope question, that sounds exactly like the Benzine case to me. (Industrial Union Dep v. American Petroleum.)



Well, my thinking is that could plausibly be viewed as an agency legal interpretation of the word "reasonably necessary."

that was my first impression as well. On the other side though, you could say it's not an interpretation of what it means to be "reasonably necessary" but whether this thing falls into the class of things that happen to be reasonably necessary for ensuring adequate levels. When the question is something like this rather than determining what it means to be reasonably necessary or what the definition of adequate levels of safety are.

Again it's arguable, but probably more the latter IMO


So if the latter, what standard are we applying? Assuming this was, say, a formal adjudication, do we have to make sure it is both supported by substantial evidence and not arbitrary & capricious?

User avatar
JamMasterJ
Posts: 6688
Joined: Sat Jan 29, 2011 7:17 pm

Re: Administrative Law

Postby JamMasterJ » Mon May 06, 2013 12:05 pm

ph14 wrote:
JamMasterJ wrote:
that was my first impression as well. On the other side though, you could say it's not an interpretation of what it means to be "reasonably necessary" but whether this thing falls into the class of things that happen to be reasonably necessary for ensuring adequate levels. When the question is something like this rather than determining what it means to be reasonably necessary or what the definition of adequate levels of safety are.

Again it's arguable, but probably more the latter IMO


So if the latter, what standard are we applying? Assuming this was, say, a formal adjudication, do we have to make sure it is both supported by substantial evidence and not arbitrary & capricious?

my (not necessarily correct) belief is that AC always applies in addition to SE (in formal adjudication/rule-making)

User avatar
ph14
Posts: 3224
Joined: Mon Sep 12, 2011 11:15 pm

Re: Administrative Law

Postby ph14 » Mon May 06, 2013 12:11 pm

JamMasterJ wrote:
ph14 wrote:
JamMasterJ wrote:
that was my first impression as well. On the other side though, you could say it's not an interpretation of what it means to be "reasonably necessary" but whether this thing falls into the class of things that happen to be reasonably necessary for ensuring adequate levels. When the question is something like this rather than determining what it means to be reasonably necessary or what the definition of adequate levels of safety are.

Again it's arguable, but probably more the latter IMO


So if the latter, what standard are we applying? Assuming this was, say, a formal adjudication, do we have to make sure it is both supported by substantial evidence and not arbitrary & capricious?

my (not necessarily correct) belief is that AC always applies in addition to SE (in formal adjudication/rule-making)



Okay, thanks.

User avatar
wiseowl
Posts: 1071
Joined: Thu Jul 03, 2008 4:38 pm

Re: Administrative Law

Postby wiseowl » Wed May 08, 2013 10:51 pm

beach_terror wrote:What in the fuck did I learn in admin last year. Reading this thread is like reading a foreign language.

Hutz_and_Goodman
Posts: 1413
Joined: Mon Apr 30, 2012 10:42 am

Re: Administrative Law

Postby Hutz_and_Goodman » Mon Apr 14, 2014 4:49 pm

What is the difference between a nonlegislative rule and an interpretive rule? Is the latter an example of the former, and if so what are some other non legislative rules?

User avatar
Nelson
Posts: 2061
Joined: Thu Feb 03, 2011 12:43 am

Re: Administrative Law

Postby Nelson » Mon Apr 14, 2014 5:31 pm

Hutz_and_Goodman wrote:What is the difference between a nonlegislative rule and an interpretive rule? Is the latter an example of the former, and if so what are some other non legislative rules?

Are you asking for Chevron purposes? If Chevron, better to look at what the rule interprets. Generally all rules promulgated after notice and comment pass Chevron step 0 as final agency action with force of law. If the rule interprets the agency organic statute or is promulgated in furtherance of it, then the agency receives Chevron deference so long as the statute is "ambiguous" in the sense that Congress has not clearly spoken one way or the other (step 1), and the agency's interpretation is permissible (reasonable) (step 2).

Or for formal vs. informal rulemaking? If that's the case, only need to look at the organic statute, but almost nothing requires formal rulemaking today, just notice and comment informal rulemaking.




Return to “Forum for Law School Students”

Who is online

Users browsing this forum: MSNbot Media and 4 guests