(Ebook) Inside Administrative Law What Matters and Why 1st Edition by Jack M Beermann ISBN 9780735579613 073557961X

(Ebook) Inside Administrative Law What Matters and Why 1st Edition by Jack M Beermann ISBN 9780735579613 073557961X

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ISBN 10: 073557961X
ISBN 13: 9780735579613
Author: Jack M Beermann

(Ebook) Inside Administrative Law What Matters and Why 1st Edition Table of contents:

Chapter 1: Introduction to Administrative Law

A. What Is Administrative Law?

1. The Sources of Administrative Law

2. Administrative Law’s Recurring Issues

B. The Origins and Roles of Administrative Agencies

1. The Origins of the “Administrative State”

2. Agencies in the Governmental Structure

3. Explanations for the Growth of the Administrative State

4. The Functions of Administrative Agencies

5. Judicial Review of Agency Action

C. Public Interest and Public Choice Explanations of Regulation and the Structure of Administrative Agencies

1. Public Interest Theory of Regulation

2. Public Interest Theory of Agency Structure

3. Public Choice Theory of Regulation

4. Public Choice and Agency Structure

5. Judicial Power and Administrative Law

Summary

Connections

Chapter 2: Separation of Powers and Administrative Law

A. Framework for Understanding Separation of Powers

B. The Nondelegation Doctrine

1. Nondelegation Foundations

2. The Strict Nondelegation Doctrine in the Early Twentieth Century

3. The Current Lenient Nondelegation Doctrine

C. Separation of Powers and the Struggle for Control

1. The Struggle for Control

2. Congressional Influence

a. Informal Congressional Influence

b. Formal Congressional Influence

c. The Legislative Veto and Review of Regulations

3. Appointment of Administrative Officials

4. Removal of Executive Branch Officials

a. Congressional Involvement in the Removal Process

b. Restrictions on Presidential Removal of Administrative Officials

5. Direct Presidential Control over Administrative Agencies

a. The Legality of Executive Orders

b. Centralized Review

c. The Line Item Veto

d. Signing Statements

D. Adjudication by Non–Article III Adjudicators

1. Crowell v. Benson and the Public Rights Versus Private Rights Doctrine

2. The Bankruptcy Courts

3. The Current Test for Adjudication in Non–Article III Tribunals

Summary

Connections

Chapter 3: The Availability of Judicial Review of Administrative Decisions

A. Jurisdiction

1. Federal Court Jurisdiction over Petitions for Judicial Review

2. Deciding Which Court Is the Proper Forum for Judicial Review

B. Reviewability

1. Presumption in Favor of Judicial Review

2. APA §704’s Grant of Judicial Review: General Understanding

3. APA §704’s Grant of Judicial Review: “Agency Action”

4. Nonstatutory Review

5. Statutory Preclusion of Review: APA §701(a)(1)

6. Committed to Agency Discretion by Law: APA §701(a)(2)

7. Preclusion of Review of Constitutional Questions

C. Standing to Seek Judicial Review

1. No Third-Party Standing: The Old Legal Right Test

2. Standing in Administrative Law under the APA: APA §702 and the Zone of Interests Test

3. General Standing Principles

4. Constitutional Standing: The “Injury-in-Fact Fairly Traceable” Test

5. Prudential Limits on Standing

6. Associational Standing

D. The Timing of Judicial Review: Finality, Ripeness, Exhaustion of Administrative Remedies, and Mootness

1. The Constitutional Underpinnings of Ripeness and Mootness

2. Finality and Ripeness in Administrative Law: The APA’s Grant of Review of “Final Agency Action”

3. Exhaustion of Administrative Remedies Prior to Seeking Judicial Review

4. Mootness: When Is It Too Late to Seek Review?

Summary

Connections

Chapter 4: Scope of Judicial Review of Administrative Decisions

A. Choosing Standards of Judicial Review under the APA

1. APA §706 Standards of Review; Definition and Mechanics

2. How to Decide Which Provision of §706 Applies

B. Defining and Applying the Standards of Review

1. Arbitrary, Capricious

2. Special Cases: Review of Decisions Not to Regulate or Enforce, Deregulation, and Agency Policy Changes

3. Special Case: Agency Statutory Interpretation

C. Review of Questions of Fact After Agency Adjudication: The Substantial Evidence Test

1. The Substantial Evidence Test Defined

2. The Substantial Evidence Test Applied

D. De Novo Review of Questions of Fact

E. Remedies on Judicial Review

Summary

Connections

Chapter 5: Advanced Issues in Agency Decisionmaking: Reasoned Decisionmaking, Cost-Benefit Analysis and Impact Statements

A. Reasoned Decisionmaking

1. Permissible Considerations in Agency Policymaking

2. Clarity and Consistency

a. Clarity

b. The Chenery Rule

c. Candor

d. Consistency

e. Agencies Must Follow Their Own Rules

f. Estoppel of Administrative Agencies

B. Cost-Benefit Analysis

1. Presidential Directives to Apply Cost-Benefit Analysis

2. Statutory Cost-Benefit Requirements

3. Should Agencies Use Cost-Benefit Analysis?

C. Impact Statements

1. Regulatory Impact Statements

2. Environmental Impact Statements under NEPA

Summary

Connections

Chapter 6: Agency Choice of Decisionmaking Procedure

A. Choice of Decisionmaking Procedure under the APA

1. The APA and the Choice of Decisionmaking Procedure

2. Agency Discretion to Make Policy by Rule

3. Decisionmaking via Formal Rulemaking: When Are Formal Rulemaking Procedures Required?

4. Agency Power to Make Policy by Adjudication

B. Informal Decisionmaking

1. Exceptions to the Applicability of §553

2. Policymaking by Manual or Other Internal Document: Morton v. Ruiz

3. Informal Decisionmaking More Generally: When May an Agency Act without Adjudication or Rulemaking?

C. Constitutional Constraints on Choice of Decisionmaking Procedure

1. The Londoner and Bi- Metallic Dichotomy

2. Legislative Facts, Adjudicative Facts, and Due Process

Summary

Connections

Chapter 7: APA Rulemaking Procedures

A. APA §553 Informal (“Notice and Comment”) Rulemaking Procedures

1. Basic Procedural Requirements for Informal Rulemaking

2. Notice

3. Opportunity to Submit Comments: The Opportunity to Participate Must Be Meaningful

4. The Problem of Ex Parte Contacts in Rulemaking

5. Prejudgment in Rulemaking: The “Unalterably Closed Mind” Standard

6. Explanation of the Decision: The Concise General Statement

7. Publication of Final Rules and Their Effective Date

B. Hybrid Rulemaking and Vermont Yankee: The Rejection of Judicial Power to Require More Than §553 Procedures in Informal Rulemaking

C. Formal Rulemaking Procedures: The Additional Requirements of APA §§556 and 557

1. When Is Formal Rulemaking Required?

2. Formal Rulemaking Procedures Resemble Adjudicatory Procedures

D. Alternative Procedural Models for Rulemaking

1. Negotiated Rulemaking

2. Direct Final Rulemaking

3. Interim Final Rules

Summary

Connections

Chapter 8: Agency Adjudication and Due Process

A. Due Process and the Adjudicatory Hearing

1. Identifying Interests Protected by Due Process: Property

2. Identifying Interests Protected by Due Process: Liberty

3. Determining What Process Is Due

a. Due Process Basics

b. Mathews v. Eldridge Balancing

c. Post- Deprivation Process and Government Torts

d. Due Process Issues with a Reduced Role for the Mathews Factors

B. Statutory Hearing Requirements

1. Distinguishing Formal and Informal Adjudication

2. Important APA Procedural Requirements

3. The Statutorily Required Hearing Must Be a Genuine Hearing—Not a Sham

4. Substantive Standards That Limit the Right to a Hearing

5. The Irrebuttable Presumption Doctrine and the Right to a Hearing

Summary

Connections

Chapter 9: Agency and Private Enforcement

A. Agency Enforcement and Discretion

1. Overview of Agency Enforcement

2. Agency Enforcement Discretion

3. Discriminatory Enforcement

4. Constitutionally Based Claims of Discriminatory Enforcement

5. Due Process and Enforcement

B. Private Liability Suits to Enforce Regulatory Requirements

1. Private Rights of Action and the Citizens’ Suit

2. Implied Private Rights of Action

Summary

Connections

Chapter 10: Licensing and Ratemaking

A. Licensing

1. Occupational Licensing

2. Broadcast Licensing Procedures

B. Ratemaking and Filed Tariffs

Summary

Connections

Chapter 11: Agency Inspections and Information Gathering

A. Inspections

1. Administrative Authority to Inspect Regulated Businesses

2. Constitutional Constraints on Agency Inspection

3. The Special Case of Inspections of Homes Relating to Regulatory Schemes

4. Drug Testing

B. Production of Information and Documents

1. The Paperwork Reduction Act

2. Agency Requests for Information or Documents

3. Disclosure of Privileged Information or Trade Secrets

Summary

Connections

Chapter 12: Preemption and Primary Jurisdiction

A. State Remedies and Regulatory Preemption

1. State Remedies and the Presumption Against Preemption

2. Standards for Federal Preemption of State Law

3. Punitive Damages and Regulatory Preemption

B. Primary Jurisdiction

Summary

Connections

Chapter 13: Liability of Agencies and Officials

A. Sovereign Immunity and Suits Against Federal Agents and Agencies

1. Common Law Sovereign Immunity

2. The Federal Torts Claim Act

B. Liability of Federal Officials for Constitutional Violations

C. Liability of State and Local Government Officials and Entities

1. The Eleventh Amendment and Sovereign Immunity

2. “And Laws” Actions

3. Municipal Liability

Summary

Connections

Chapter 14: Freedom of Information and Open Meetings

A. The Freedom of Information Act

1. Public Right of Access to Agency Records

2. Exceptions to FOIA’s Disclosure Requirements

B. Discovery from the Government in Litigation

1. Evidentiary Privileges

2. Executive Immunity or Executive Privilege

C. Open Meetings Requirements

1. The Sunshine Act

2. The Federal Advisory Committee Act (FACA)

Summary

Connections

Table of Cases

Table of Statutes

Index

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Tags: Jack M Beermann, Administrative Law, What Matters