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Administrative Law : Bureaucracy in a Democracy,9780131184329
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Administrative Law : Bureaucracy in a Democracy

by
Edition:
4th
ISBN13:

9780131184329

ISBN10:
0131184326
Format:
Hardcover
Pub. Date:
1/1/2009
Publisher(s):
Prentice Hall
List Price: $123.60
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    Administrative Law Bureaucracy in a Democracy




Summary

The underlying theme of the book examines the relationship of administrative agencies to democracy, in particular, how the law attempts to keep daily practices of government agencies accountable.The book includes discussions of bureaucracy and democracy; agency discretion and the requirement of fairness; delegation; agency rulemaking, investigations and information collection; agency adjudications; and accountability through reviewability, accessibility, and liability.For professionals practicing law, and those in the political science community.

Table of Contents

Preface xv
About the Author xix
Introduction
1(12)
Administrative Law Defined
1(1)
Sources of Administrative Law
2(1)
Constitution
2(1)
Enabling Laws
2(1)
Administrative Procedure Act
2(1)
Executive Orders
2(1)
Administrative Agencies
3(8)
The Need for Agencies
5(1)
Types of Agencies
6(1)
The History and Size of the Bureaucracy
7(3)
The Impact of Agencies on Daily Life
10(1)
Conclusion
11(2)
Bureaucracy and Democracy
13(20)
Democracy and Accountability
13(8)
Democracy Defined
13(1)
Federalism
14(3)
Separation of Powers
17(1)
United States v. Morrison
18(3)
Controlling the Bureaucracy
21(8)
Bureaucracy Defined
21(1)
Presidential Control
21(3)
Congressional Control
24(1)
Clinton v. City of New York
25(2)
INS v. Chadha
27(2)
Judicial Control
29(1)
Conclusion
29(4)
Agency Discretion
33(16)
Introduction
33(1)
Detriments and Benefits of Discretion
34(1)
Limits on Agency Discretion
35(1)
Examples of Agency Discretion
36(11)
Prosecutorial Discretion
36(1)
General Motors v. Federal Energy Regulatory Commission
37(1)
Rulemaking and Policy Discretion
38(1)
Claims and Applications Decisions
38(1)
Protective Action
38(1)
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.
39(1)
Gonzalez v. Reno
40(4)
Tests and Inspections Generally
44(1)
Brock v. Roadway Express, Inc.
45(1)
Advisory Opinions and Declaratory Orders
46(1)
Mediation and Arbitration
47(1)
Other Action
47(1)
Conclusion
47(2)
The Requirement of Fairness
49(40)
Due Process in General
50(1)
Protected Interests
51(4)
Life
52(1)
Liberty
52(1)
Property
52(1)
Entitlements
52(1)
Governmental Employment
53(1)
Licenses
53(1)
Perry v. Sindermann
54(1)
Utilities
55(1)
Education
55(1)
Cost-Benefit Analysis
55(3)
Goss v. Lopez
56(2)
Notice
58(1)
Hearing
58(9)
Where
59(1)
What
59(1)
When
60(1)
Goldberg v. Kelly
61(2)
Counsel
63(1)
Gilbert v. Homar
64(3)
Equal Protection
67(13)
Ingraham v. Wright
68(1)
Dixon v. Love
69(1)
The Tests
70(2)
FSK Drug Corp. v. Perales
72(1)
Affirmative Action and Diversity
73(1)
Grutter v. Bollinger
74(4)
Gratz v. Bollinger
78(2)
Fifteenth Amendment
80(1)
Conclusion
80(9)
Rice v. Cayetano
81(8)
Delegation
89(28)
What is Delegation?
89(1)
Delegating Legislative Authority
90(6)
United States v. Grimaud
91(1)
Panama Refining Co. v. Ryan
92(4)
The Nondelegation Doctrine Today
96(5)
Touby v. United States
97(4)
Delegating Judicial Authority
101(8)
Whitman v. American Trucking Associations
102(2)
South Dakota v. Department of Interior
104(5)
Delegating to Private Agencies
109(3)
Foley v. Osborne Court Condominium
110(2)
Delegation and Criminal Law
112(1)
Arrest and Detention
113(1)
Conclusion
114(3)
Agency Rulemaking
117(24)
In General
117(5)
Rulemaking and Adjudication Defined
122(1)
The Volume of Rules
122(1)
Types of Rules
123(2)
Rulemaking Procedure
125(8)
Formal Rulemaking
125(1)
United States v. Florida East Coast Railroad
126(2)
Informal Rulemaking
128(1)
Exempted Rulemaking
128(2)
Hybrid Rulemaking
130(1)
Negotiated Rulemaking
131(1)
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council
132(1)
Advisory Committees
133(1)
Ratemaking
133(1)
Taxation and Revenues
133(1)
Controlling Rulemaking Authority
134(1)
Conclusion
134(7)
FDA v. Brown & Williamson
135(6)
Agency Investigations and Information Collection
141(36)
Acquiring Information
141(1)
Recordkeeping and Reporting
142(4)
United States v. Morton Salt Co.
143(1)
Fifth Amendment Aspects
144(1)
Immunity
145(1)
Inspections, Tests, and Searches
146(20)
Fourth Amendment Aspects
147(2)
Camera v. Municipal Court
149(2)
Drug, Alcohol, and AIDS Testing
151(1)
Skinner v. Railway Labor Executive Ass'n
152(10)
Vernonia School District v. Acton
162(3)
Closely Regulated Businesses
165(1)
Subpoenas
166(5)
Donovan v. Dewey
167(4)
Enforcement of Subpoenas
171(1)
Parallel Proceedings
171(1)
Paperwork Reduction Act
172(1)
Conclusion
172(5)
Formal Adjustications
177(36)
In General
178(1)
Notice
178(1)
Parties and Participation
179(5)
Parties in Interest and Intervention
179(3)
Ashbacker Radio Corp. v. Federal Communications Commission
182(1)
Other Methods of Participation
183(1)
Discovery
184(2)
Prehearing Conference
186(1)
Prehearing Settlement and Alternative Dispute Resolution
187(1)
The Hearing
187(23)
Evidence Admissibility
187(2)
Prejudicial Error Rule
189(1)
Legal Residuum Rule
189(1)
Privileged and Illegal Evidence
189(1)
Richardson v. Perales
190(2)
Immigration & Naturalization Service v. Lopez-Mendoza
192(2)
Official Notice
194(1)
Burdens
194(1)
Standards
195(1)
Administrative Law Judges
195(1)
Steadman v. United States
196(1)
Woodby v. Immigration & Naturalization Service
197(1)
Independence
198(1)
Interest, Bias, and Prejudgment
198(1)
Stephens v. Merit Systems Protection Board
199(2)
Gibson v. Berryhill
201(2)
Separation and Combination of Functions
203(1)
Counsel and Attorney Fees
204(1)
The Decision
204(1)
Institutional Decision
205(1)
Final, Initial, and Recommended Decisions
205(1)
Findings in Formal Adjudications
206(1)
Findings in Informal Adjudications
206(1)
The Right to a Jury in Administrative Proceedings
207(1)
Observing an Administrative Hearing
208(2)
License Cases
210(1)
Conclusion
210(3)
Accountability through Reviewability
213(44)
In General
214(1)
Sources of Review Authority
214(3)
Statutory
214(2)
Nonstatutory
216(1)
Agency Discretion
217(3)
Lincoln v. Vigil
218(2)
Standing
220(12)
Heckler v. Chaney
221(2)
Association of Data Processing Service Organizations v. Camp
223(1)
Citizen and Taxpayer
224(1)
Qui Tam Actions
225(1)
Federal Election Commission v. Akins
226(3)
Environmental Cases
229(1)
Sierra Club v. Morton
230(2)
Competitor
232(1)
Consumer
232(1)
Timing of Review
232(6)
Primary Jurisdiction
233(1)
Exhaustion of Administrative Remedies
234(1)
Ripeness
234(1)
McKart v. United States
235(3)
Scope and Standards of Review
238(10)
Standard One: De Novo
240(2)
Standard Two: Substantial Evidence
242(1)
Standard Three: Arbitrary, Capricious, Abuse of Discretion
242(1)
Motor Vehicle Manufacturers Ass'n v. State Farm Mutual Automobile Insurance Co.
243(1)
Issues of Law
244(2)
Issues of Fact
246(1)
Mixed Questions of Law and Fact
246(1)
Issues of Discretion
246(1)
Failure to Raise Issues
247(1)
Alternative Rationale
247(1)
Review of Rules
248(1)
Common Law Doctrines
248(5)
Res Judicata
248(1)
Collateral Estoppel
249(1)
Application to the Government
250(1)
Equitable Estoppel
250(2)
Schweiker v. Hansen
252(1)
Laches
252(1)
Conclusion
253(4)
Accountability through Accessibility
257(38)
Introduction
258(1)
Freedom of Information Act
259(18)
Publication Requirement
260(1)
Failure to Publish
260(1)
Inspection and Copying Requirement
260(1)
Indexing
261(1)
Failure to Comply
261(1)
Production upon Request Requirement
261(1)
Request Procedure
261(2)
What Records?
263(1)
FOIA as Discovery
263(2)
North v. Walsh
265(2)
Fees and Waivers
267(1)
Exemptions
267(1)
National Defense and Foreign Policy
268(1)
Critical Infrastructures
268(1)
Agency Personnel Matters
268(1)
Other Statutes
269(1)
Trade Secrets and Financial Information
269(1)
Agency Memoranda
269(1)
Personnel, Medical, and Files Containing Private Information
270(1)
Law Enforcement Records
270(1)
United States Department of Defense v. Federal Labor Relations Authority
271(2)
National Archives & Records Administration v. Favish
273(2)
Financial Institution Information
275(1)
Geological Information
275(1)
Judicial Review and Remedies
275(2)
Congressional Monitoring
277(1)
Privacy Act
277(8)
Collection of Information
277(1)
Maintaining Records, Publication, and Rules
278(1)
Disclosure of Records
279(1)
Relationship of FOIA and Privacy Act
280(1)
Individual Access
281(1)
Amending Records
282(1)
Judicial Review and Remedies
282(1)
Civil Actions
283(1)
Ray v. Turner
284(1)
Criminal Penalties
285(1)
Congressional Monitoring
285(1)
Government in the Sunshine Act
285(2)
Exemptions
286(1)
Judicial Review and Remedies
286(1)
Congressional Monitoring
287(1)
Federal Advisory Committee Act
287(1)
Trade Secrets Act
287(1)
Privatization and the Public's Right to Know
288(1)
Conclusion
288(7)
Forsham v. Harris
289(6)
Accountability through Liability
295(36)
Introduction
296(1)
Sovereign Immunity
296(1)
Federal Tort Claims Act and Its Exceptions
297(9)
Executive Functions
298(1)
Intentional Torts
298(1)
Discretionary Function Doctrine
298(1)
Scope of Employment
298(1)
Bowers v. City of Chattanooga
299(2)
Public Duty Doctrine
301(1)
Kirk v. City of Shawnee
302(3)
Damages Limitations
305(1)
Section 1983 Actions
306(15)
Plaintiffs and Defendants
306(2)
Monell v. Department of Social Services
308(2)
Deprivation and Color of Law
310(1)
Remedies, Fees, and Costs
311(1)
County of Sacramento v. Lewis
312(2)
Smith v. Wade
314(1)
Procedure
314(2)
Immunities
316(1)
Absolute and Qualified
317(1)
Functional Approach
317(1)
Harlow v. Fitzgerald
318(1)
Judges
318(1)
Prosecutors
319(1)
Law Enforcement Officers
320(1)
Witnesses and Jurors
320(1)
Public Defenders
320(1)
Legislators
320(1)
Procedure and Immunity Claims
321(1)
Constitutional Claims
321(2)
Bivens v. Six Unknown Agents
322(1)
Common Law Torts and Official Immunity
323(1)
Tucker Act
323(3)
Strothman v. Gefreh
324(2)
Private Parties as Government Actors
326(1)
Conclusion
327(4)
Researching Administrative Law Issues
331(12)
Introduction
331(1)
The Scope of Administrative Law
331(1)
Beginning the Search
332(1)
Rules Created by the Administrative Agency
332(1)
Finding Agency Decisions
333(1)
Searching the Federal Register
334(1)
Searching the C.F.R.
334(1)
Computerized Sources for Administrative Law
334(9)
Appendix A: Constitution of the United States of America 343(20)
Appendix B: Administrative Procedure Act Excerpts 363(34)
Appendix C: Selected Executive Orders 397(22)
Index 419

Excerpts

Since the second edition of this text was published, the United States was attacked, resulting in wars in Afghanistan, Iraq, and against terror in the United States and around the World. The attacks of September 11, 2001 also led to one of the largest federal administrative restructures in recent history. These events and others, such as the continued growth of privatization of public services, challenged agencies, executive officials, and courts to rethink long-standing structural and legal paradigms. Although the Nation is in the midst of these changes and much of the law is yet to be defined, I have tried to identify the issues and lay the framework as it exists. These areas are likely to change before the next edition of this text is released. This creates opportunities for discussion in the classroom and for research outside of the classroom. I have retained all the organizational and pedagogical features of the Second Edition, which are outlined in the preface to the Second Edition, which follows below. In addition, here is a brief list of the most significant changes made in this edition: Several references to the newly formed Office of Homeland Security have been added. Examples were updated throughout the text. For example, in the discussion of executive orders, new orders concerning terrorism issued by President George W. Bush replaced orders issued by President William J. Clinton. Caselaw and figures have been updated throughout the text. New graphics were added in a couple of locations where the material was particularly challenging to students. In response to suggestions by the reviewers, the concepts of democracy and bureaucracy were more fully discussed early in the book, providing the readers with needed context. Several sections were more thoroughly developed, including the discussion of equal protection, which now includes,interalia, a discussion of Affirmative Action and the University of Michigan cases. Developments in government in the sunshine, particularly in regards to terrorism, have been added. A more thorough discussion, with a new illustration, of the relationship between the FOIA and Privacy Act has been added. A new section on privatization and liability was added. An expanded discussion and new chart on the state action doctrine enriches this change. Additional end-of-chapter problems were added to a couple of chapters. I benefited from the good counsel of several reviewers. Thanks to each of the following for taking the time to review and comment on the manuscript. As was true of the Second Edition, the final chapter on researching administrative law issues was contributed by Dr. Deborah Howard of the University of Evansville. This well-written chapter guides the introductory student through the challenging task of conducting basic administrative law research. Thanks again to Deborah for this important contribution. I also thank the editorial staff of Prentice Hall, who are courteous, professional, and a pleasure to work with. ADMINISTRATIVE LAW: BUREAUCRACY IN DEMOCRACY No legal subject is as timely and important as administrative law. Today, nearly every person will have contact with several government agencies in a year's time while never making contact with an elected representative. Even more, individuals, especially those who own or operate businesses, are more heavily regulated by administrative agencies than they are by their "political" representatives. The Framers of the United States Constitution intended to create a self-governing republic. But the Framers lived in a simpler world, one without international travel, the Internet, and businesses as large and powerful as nations. Governments have turned to large bureaucratic agencies to meet the demands of the increasingly large and complex nation. The challenge is to remember what the Framers feare


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