Administrative Law : Bureaucracy in a Democracy

by Hall, Daniel E.

• ISBN13: 9780130909695
• ISBN10: 0130909696
• Edition: 2nd
• Format: Hardcover
• Copyright: 2002-01-01
• Publisher: Prentice Hall

Summary

Latest Trends in Administrative Law! bull; "Real world" Procedural Aspects Includes bull; Rulemaking Informal Action Agency Discretion Formal Adjudication Legal Analysis Civil Liability

Author Biography

Daniel E. Hall is associate professor of criminal justice and legal studies at the University of Central Florida.

Table of Contents

Preface	xv
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	(7)
The Need for Agencies	5	(1)
Types of Agencies	5	(1)
The History and Size of the Bureaucracy	6	(3)
The Impact of Agencies on Daily Life	9	(1)
Conclusion	10	(3)
Bureaucracy and Democracy	13	(18)
Democracy and Accountability	13	(7)
Federalism	13	(3)
United States v. Morrison	16	(2)
Separation of Powers	18	(2)
Theme	20	(1)
Controlling The Bureaucracy	20	(8)
Presidential Control	20	(4)
Clinton v. City of New York	24
Congressional Control	23	(3)
INS v. Chadha	26
Judicial Control	25	(3)
Conclusion	28	(3)
Agency Discretion	31	(18)
Introduction	31	(1)
Detriments and Benefits of Discretion	32	(1)
Limits on Agency Discretion	33	(1)
Examples of Agency Discretion	34	(12)
Prosecutorial Discretion	34	(1)
General Motors v. Federal Energy Regulatory Commission	35	(1)
Rulemaking and Policy Discretion	36	(1)
Chevron v. Natural Resources Defense Council	37	(1)
Gonzalez v. Reno	38
Claims and Applications Decisions	36	(1)
Protective Action	36	(7)
Brock v. Roadway Express	43
Tests and Inspections Generally	42	(2)
Advisory Opinions and Declaratory Orders	44	(1)
Mediation and Arbitration	45	(1)
Other Action	45	(1)
Conclusion	46	(3)
The Requirement of Fairness	49	(28)
Due Process in General	50	(1)
Protected Interests	51	(3)
Life	51	(1)
Liberty	51	(1)
Property	51	(1)
Entitlements	52	(1)
Governmental Employment	52	(1)
Perry v. Sindermann	53	(1)
Licenses	54	(1)
Utilities	54	(1)
Education	54	(1)
Goss v. Lopez	55
Cost-Benefit Analysis	54	(2)
Notice	56	(1)
Hearing	57	(11)
Where	57	(1)
What	57	(1)
When	58	(1)
Goldberg v. Kelly	59	(3)
Gilbert v. Homar	62	(4)
Ingraham v. Wright	66	(1)
Dixon v. Love	67
Counsel	65	(3)
Equal Protection	68	(4)
FSK Drug Corp. v. Perales	71	(1)
Conclusion	72	(5)
Delegation	77	(26)
What is Delegation?	77	(1)
Delegating Legislative Authority	78	(6)
United States v. Gramaud	79	(1)
Panama Refining v. Ryan	80	(4)
The Nondelegation Doctrine Today	84	(1)
Touby v. United States	86	(4)
South Dakota v. Department of Interior	90
Delegating Judicial Authority	85	(9)
Foley v. Condominium Association	95
Delegating to Private Agencies	94	(4)
Delegation And Criminal Law	98	(1)
Arrest And Delegation	98	(1)
Conclusion	99	(4)
Agency Rulemaking	103	(24)
In General	103	(5)
Rulemaking and Adjudication Defined	108	(1)
The Volume of Rules	109	(1)
Types of Rules	110	(1)
Rulemaking Procedure	110	(9)
Formal Relumaking	111	(1)
United States v. Florida East Coast R.R.	112	(1)
Informal Rulemaking	113	(2)
Exempted Rulemaking	115	(1)
Hybrid Rulemaking	115	(2)
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council	117	(1)
Negotiated Rulemaking	118	(1)
Advisory Committees	118	(1)
Ratemaking	119	(1)
Taxation and Revenues	119	(3)
Controlling Rulemaking Authority	122	(1)
FDA v. Brown and Williamson	120	(3)
Conclusion	123	(4)
Agency Investigations and Information Collection	127	(34)
Acquiring Information	127	(1)
Recordkeeping and Reporting	128	(4)
United States v. Morton Salt Co.	129	(1)
Fifth Amendment Aspects	130	(1)
Immunity	131	(1)
Inspections, Tests, and Searches	132	(20)
Fourth Amendement Aspects	132	(3)
Camera v. Municipal Court	135
Drug, Alcohol, and AIDS Testing	134	(4)
Skinner v. Railway Labour Executive Ass'n	138	(10)
Vernonia School District v. Action	148	(3)
Closely Regulated Businesses	151	(2)
Donovan v. Dewey	153
Subpoenas	152	(5)
Enforcement of Subpoenas	155	(2)
Parallel Proceedings	157	(1)
Paperwork Reduction Act	157	(1)
Conclusion	158	(3)
Agency Adjudications	161	(36)
In General	162	(1)
Notice	162	(1)
Parties and Participation	163	(6)
Parties in Interest and Intervention	163	(3)
Ashbacker Radio Corp. v. Federal Communications Commission	166
Other Methods of Participation	165	(4)
Discovery	169	(1)
Prehearing Conference	170	(1)
Prehearing Settlement/ADR	170	(1)
The Hearing	170	(24)
Evidence Admissibility	171	(1)
Prejudicial Error Rule	172	(1)
Legal Residuum Rule	172	(1)
Richardson v. Perales	173
Privileged and Illegal Evidence	172	(4)
INS v. Lopez-Mendoza	176
Official Notice	175	(3)
Burdens	178	(1)
Standards	178	(1)
Steadman v. United States	179	(1)
Woodby v. INS	180	(1)
Administrative Law Judges	180	(1)
Independence	181	(2)
Stephens v. Merit Systems Protection Board	183
Interest, Bias, and Prejudgment	182	(3)
Gibson v. Berryhill	185	(1)
Separation and Combination of Functions	186	(1)
Counsel and Attorney Fees	187	(1)
The Decision	188	(1)
Institutional Decision	188	(1)
Final, Initial, and Recommended Decisions	188	(1)
Findings in Formal Adjudications	189	(1)
Findings in Informal Adjudications	190	(1)
The Right to a Jury in Administrative Proceedings	190	(2)
Observing and Administrative Hearing	192	(2)
License Cases	194	(1)
Conclusion	194	(3)
Accountability Through Reviewability	197	(42)
In General	198	(1)
Sources of Review Authority	198	(2)
Satutory	198	(2)
Nonstatutory	200	(1)
Agency Discretion	200	(4)
Lincoln v. Vigil	202	(3)
Heckler v. Chaney	205
Standing	204	(12)
Association of Data Processing Service Orgs. v. Camp	207	(1)
Citizen and Taxpayer	208	(2)
Federal Election Commission v. Akins	210
Qui Tam Actions	209	(4)
Environmental Cases	213	(1)
Sierra Club v. Morton	214	(1)
Competitor	215	(1)
Consumer	216	(1)
Timing of Review	216	(5)
Primary Jurisdiction	216	(1)
Exhaustion of Administrative Remedies	217	(8)
Mckart v. United States	225
Ripeness	218	(3)
Scope and Standards of Review	221	(10)
De Novo	221	(2)
Substantial Evidence	223	(3)
Arbitrary, Capricious, Abuse of Discretion	226	(1)
Issues of Law	226	(3)
Issues of Fact	229	(1)
Mixed Questions of Law and Fact	230	(1)
Issues of Discretion	230	(1)
Failure to Raise Issues	230
Motor Vehicle Manufacturers Ass'n. v. State Farm Mutual	227	(4)
Alternative Rationale	231	(1)
Review of Rules	231	(1)
Common Law Doctrines	232	(4)
Res Judicata	232	(1)
Collateral Estoppel	233	(1)
Application to the Government	233	(1)
Equitable Estoppel	234	(2)
Schweiker v. Hansen	236
Laches	235	(1)
Conclusion	236	(3)
Accountability through Accessibility	239	(30)
Accountability Through Accessibility	240	(1)
Freedom of Information Act	240	(15)
Publication Requirement	241	(1)
Failure to Publish	241	(1)
Inspection and Copying Requirement	242	(1)
Indexing	242	(1)
Failure to Comply	242	(1)
Production upon Request Requirement	242	(1)
Request Procedure	243	(1)
What Records?	244	(1)
FOIA as Discovery	245	(2)
North v. Walsh	247
Fees and Waivers	245	(1)
Exemptions	245	(4)
National Defense and Foreign Policy	249	(1)
Agency Personnel Matters	249	(1)
Other Statutes	249	(1)
Trade Secrets and Financial Information	250	(1)
Agency Memoranda	250	(1)
Personnel, Medical, and Files Containing Private Information	250	(2)
Department of Defense v. Federal Labor Relations Authority	252
Law Enforcement Records	251	(1)
Financial Institution Information	251	(1)
Geological Information	251	(3)
Judicial Review and Remedies	254	(1)
Congressional Monitoring	255	(1)
Privacy Act	255	(7)
Collection of Information	256	(1)
Maintaining Records, Publication, and Rules	257	(1)
Disclosure of Records	257	(1)
Individual Access	258	(1)
Amending Records	258	(1)
Judicial Review and Remedies	258	(1)
Civil Actions	258	(3)
Ray v. Turner	261
Criminal Penalties	260	(1)
Congressional Monitoring	261	(1)
Government in the Sunshine Act	262	(1)
Exemptions	262	(1)
Judicial Review and Remedies	263	(1)
Congressional Monitoring	263	(1)
Federal Advisory Committee Act	263	(1)
Trade Secrets Act	264	(1)
Privatization and the Public's Right to Know	264	(1)
Forsham v. Harris	265
Conclusion	264	(5)
Accountability Through Liability	269	(34)
Introduction	270	(1)
Sovereign Immunity	270	(1)
Federal Tort Claims Act and Its Exceptions	271	(5)
Executive Functions	272	(1)
Intentional Torts	272	(1)
Discretionary Function Doctrine	272	(1)
Bowers v. City of Chattanooga	273	(2)
Scope of Employment	275	(1)
Public Duty Doctrine	275	(2)
Kirk v. City of Shawnee	277
Damages Limitations	276	(1)
Section 1983 Actions	276	(21)
Plaintiffs and Defendants	281	(1)
Monell v. Department of Social Services	282	(1)
Deprivation and Color of Law	283	(2)
County of Sacramento v. Lewis	285
Remedies, Fees, and Costs	284	(3)
Smith v. Wade	287	(1)
Procedure	288	(3)
Immunities	291	(1)
Absolute and Qualified	291	(1)
Harlow v. Fitzerald	292	(1)
Functional Approach	292	(1)
Judges	293	(1)
Prosecutors	293	(1)
Law Enforcement Officers	294	(1)
Witnesses and Jurors	294	(1)
Public Defenders	294	(1)
Legislators	295	(1)
Procedure and Immunity Claims	295	(2)
Constitutional Claims	297	(1)
Bivens v. Six Unknown Agents	296	(1)
Common Law Torts and Official Immunity	297	(3)
Strothman v. Gefreh	298	(2)
Tucker Act	300	(1)
Conclusion	300	(3)
Researching Administrative Law Issues	303	(12)
Introduction	303	(1)
The Scope of Administrative Law	304	(1)
Beginning the Search	304	(1)
Rules Created by the Administrative Agency	304	(1)
Finding Agency Decisions	305	(1)
Searching the Federal Register	305	(1)
Searching the CFR	306	(1)
Computerized Sources for Administrative Law	306	(9)
APPENDIX A: Constitution of the United States	315	(18)
APPENDIX B: Administrative Procedure Act Excerpts	333	(32)
APPENDIX C: Selected Executive Orders	365	(16)
Index	381

Excerpts

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 feared and to remain steadfast in preserving what they designed, even in the wake of social and technological change. This text is devoted to the idea that government is to remain accountable, and thereby tyranny can be prevented. The simple division of power into federal and state and into three branches is no longer realistic. But the principle is the right one, and with some molding it can continue to be an effective structural constraint on agency authority. The reader will learn in this text that most constitutional rules and doctrines that apply to administrative law are intended to keep government accountable. Even more, when distilled, many of them are founded upon separations theory. There are three goals in this text: to examine administrative law in the context of accountability and the prevention of abuse; to assist students in critical thinking and case analysis by including case excerpts; to provide students with some practical knowledge of administrative agencies and the laws that govern their behavior. TEXT FEATURES Thewriting styleand language of this book are intended for the undergraduate student in law, justice, or political science or the graduate student in non-law fields. When used, legalese is explained. As mentioned, I have includedcase excerptsthroughout the text. Cases were selected on the basis of the following criteria: importance and impact, currentness, clarity of writing, and ability to be edited successfully. The book has been written so that the text can stand alone. The cases are used to illustrate or more fully develop ideas that are discussed in the text. In order to keep the cases an appropriate length, considerable text .has been excised from most of the cases. The guiding principle in the editing process was to reduce the size of each case without jeopardizing its legal and educative integrity. Some internal citations have been retained, others removed. In some instances, especially a long string of cities, the removal of a citation is denoted with an ellipsis. In others, the citation has been removed without notation. Manyillustrations, graphs, and figuresare used to assist the students in conceptualizing the subjects discussed. These include conceptual mapping diagrams as well as data charts. Sidebarson topics related to the discussion in the text have been included to increase student interest in the subject. Legal termsare in boldface in the text and defined in the margins. At the close of each chapter, a legal Web site is featured inLawlinks.In addition, a list of Web sites can be found in Chapter 12. Review questions and review problemscan be found at the close of each chapter. Review questions are designed to test the reader's retention of the content of the chapter. The review problems are designed to test the reader's ability to apply the concepts of the chapter to a set of facts or to engage in critical analysis. Appendicesinclude excerpts from the federal Constitution, the Admi