Administrative Law
Authors:
Aman Jr., Alfred C. / Mayton, William T.
Edition:
3rd
Copyright Date:
2014
43 chapters
have results for Administrative Law and Process
Chapter 3: Rulemaking and the Rule of Law 58 results (showing 5 best matches)
- Outside of the Administrative Procedure Act, the courts, in a particular group of due process cases, have imposed their own rule of law requirements. We will consider these cases and the Administrative Procedure Act’s codification and publication requirements shortly. But first we will briefly address the arguments, pro and con, for agency regulation according to rules.
- At times, the courts have seen a connection between constitutional structure and the rule of law. Due process, open-ended as it, has in these hands served the rule of law. In his exposition on due process in the administrative statue, Prof. Rubin concludes that due process includes the “basic value” of “the rule of law, that is, the “treatment of individuals in accordance with legal standards.” In any event, due process has for the courts been a handle, as is shown in Justice Brennan’s assertion:
- Same as the codification and publication requirements of the Administrative Procedure Act, due process requirements of regulation according to standing rules are associated with distributions of tangible economic benefits such as a license or welfare or a subsidy. On the other hand, these requirements to not appear to be extended to “command and control” orders (such as those of economic regulatory agencies like the Federal Trade Commission or Securities Exchange Commission) that are unadorned (as least not obviously) by tangible benefits and that instead require or condemn certain conduct. Otherwise, due process-based rule-of-law requirements in practice relate to the level of government involved. The rule-of-law/due process cases generally involve state agencies. This may be happenstance. Or it may indicate that state agencies are looser in their regard for rule-of-law values. Or, more likely, these cases show that at least federal courts act against state agencies more...
- The Administrative Procedure Act, as discussed above, specifically establishes a similar scheme for agency rules and standards. This Act was not, however, in force when the agency action in occurred. Accordingly, the case was not decided under the Act and its rule of law provisions.
- Finally, the rule-of-law context of due process does not directly involve the usual use of due process, which is procedures and whether an individual has fairly been heard when the government acts against him personally. Still, there is a connection, between regulation according to rules and concerns about procedural protections and fair hearings. Procedures and hearings offer little protection without such rules and standards as might give content to the hearings. As the Fifth Circuit so succinctly stated, “The idea of a hearing is fine. But what is to be heard?”
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Chapter 7: Due Process 205 results (showing 5 best matches)
- Because of these drawbacks to trial-type procedures, various agencies have tried various alternatives. One alternative is the “inquisitorial” hearing. In administrative law, this sinister-sounding process is simply a variation of the trial-type model in which the administrative law judge assumes responsibilities ordinarily performed by the separate legal counsel of the two sides to a hearing. Also, the administrative law judge may assist an underrepresented party in preparing his case. Another alternative process, one that seems appropriate in the context of the dynamic agency-client relationships of welfare programs, is that of a “managerial” system of process. Instead of trying to correct agency decisions by a separate and after-the-fact evidentiary hearing, a managerial system concentrates on improving the agency decisional process itself. It consists of quality controls internal to the agency and on ...the evaluation of performance against those standards, and action to...
- the Court held that an inquisitorial process was consistent with due process. In the disability hearing the administrative law judge had assumed responsibilities ordinarily performed by separate legal counsel for both claimant and government. He prepared evidence for both sides, generally aided an unrepresented claimant in preparing his case, and then at the hearing decided the case. This “three-hat role” of the administrative law judge, the Court found, was fair to the individual and provided for a more efficient resolution of his claim. This being the case, the arguments against the system “assume[d] too much and would bring down too many procedures designed, and working well, for a governmental structure of great and growing complexity.”
- Especially in administrative law, the idea of liberty has acquired two sides. The usual and stronger side is the “natural liberty” of a person to act, to do, to be: free of the constraints of government. The other, weaker side is that of liberty as a species of positive law, which depends on an entitlement established by the state as in In the following sections we will discuss these two aspects of liberty within the meaning of due process, and we do so by starting with natural liberty.
- , about a common law remedy diminishing the need for a prior administrative hearing, became a basis of decision in . In this case, the Court found that a school paddling was a “bodily restraint and punishment” that amounted to a taking of liberty. The Court, however, held that this taking did not require a hearing prior to the paddling. State law provided civil actions for a wrongful paddling, and the threat of damages inculcated a prudence that should diminish the risk of erroneous corporal punishment. , where the claim was that due process was violated inasmuch as the state negligently and without a prior hearing took plaintiff’s personal property. In denying that claim, the Court noted the availability of a state tort action for damages and emphasized that the plaintiff could be made whole for his loss of property in that action. “The [tort] remedies provided could have fully compensated the respondent for the property loss he suffered, and we hold that they are sufficient to...
- But consistent with the case law after , the test added (1) an assessment of the marginal contribution to the accuracy of an agency action of a claimed procedural requirement, and (2) a calculation of the “fiscal and administrative burden that [an] additional or substitute procedural requirement would entail.” In a matter we will return to, the Court emphasized that in applying this three-part test the courts should not address the circumstances of the individual claiming due process, but the courts should instead consider the “generality” of cases. The balancing process prescribed by the Court is, therefore, somewhat utilitarian and legislative-like.
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Introduction 30 results (showing 5 best matches)
- A measure of the breadth of administrative law is set by the federal Administrative Procedure Act. That Act provides that federal administrative law basically covers the entire federal structure, excepting Congress and the courts. To be sure some structures, albeit nominally within the scope of a general administrative law, have in practice and owing to the nature of their work, stayed outside it. Notably, structures pertaining to international relations and military are in various ways not subject to the law we present in this book. So has the enforcement of criminal law, but for the different reason that special constitutional safeguards, those of the Fourth, Fifth, and Sixth Amendments to the Constitution, pertain to this process. But with the exclusions aside, we are left with much of government, the part pertaining to the civil affairs of the American people, as the range of administrative law. Of late the courts have reminded the Internal Revenue Service of this fact. As said...
- Today, administrative law still unfolds. Not every development involves the Administrative Procedure Act. The constitutional requirement of due process of law has been expanded by the courts, placing them in a supervisory position respecting state and federal adjudications. State practice, while following the same lines as federal practice, has developed some of its own wrinkles. Also, apart from the initial emphasis, on rulemaking, adjudication, and judicial review, another dimension has been added to the original Act. This additional dimension is about information, its value and its harms. In 1966, the Freedom of Information Act was added to the Administrative Procedure Act, to provide for (subject to certain exemptions) public access to information held by agencies. In 1974, the Privacy Act was added, to limit the agencies respecting information harmful to individuals. To open agency processes to public inspection, the Administrative Procedure Act was amended by the Government in...
- There were reservations, grave ones, about this departure. Some reservations were purely social and economic, respecting the wisdom in creating a large public sector as the New Deal was doing. Other reservations were about the instrumentalities of this sector, the agencies themselves. The harsh assessment, of a 1937 presidential commission, was that agencies now comprised a “headless ‘fourth branch’ of government, a haphazard collection of irresponsible agencies and uncoordinated powers.” This matter of “irresponsible agencies and uncoordinated power” was seen as a structural and procedural problem, albeit procedure in upper-case terms. These matters of structure and procedure are still with us; they are the body of administrative law. Administrative law, then, is not about the substance of what agencies do. That is a different and more political topic. Instead, administrative law is about the structures and processes by which agencies do what they do.
- In 1946, the same year the Administrative Procedure Act was enacted, the National Conference of Commissioners on Uniform State Laws adopted a “Model State Administrative Procedure Act.” This Act was revised in 1961 and in 1981. Most states have an administrative procedure act and most of these acts are based on the Model Act.
- The range of administrative law is as important as it is large. For a time, courts and judges particularly drew attention to this prominence. In 1952, Mr. Justice Jackson wrote that “The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than those of all the courts …”administrative law was part of their own work; for the Supreme Court, it was the “largest category of cases decided on the merits.” Today, the position of administrative law, its prominence and how it pertains to government action that affects us, is simply a given.
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Chapter 9: Informal Agency Processes and Actions 135 results (showing 5 best matches)
- Administrative agencies and the procedures they employ arose, in part, as an alternative dispute resolution mechanism. They were in reaction to the formality, cost and delay experienced by parties who had to litigate their regulatory disputes in federal and state courts. Some critics now contend that the administrative process itself has become unduly formal, costly and time-consuming. Moreover, many administrative agencies must deal with an enormous caseload. Some of these cases involve disputes that are inherently more amenable to alternative dispute resolution (ADR) methods. Arbitration, for example, may be more efficient than administrative adjudication for resolving monetary disputes between private parties, especially if these disputes do not involve significant policy or legal issues. For the most part, participants are more directly involved in the decision-making process itself and that process is usually cheaper and faster. For reasons such as these, alternative dispute...
- On remand, however, it became clear that no such administrative record actually existed; it had to be assembled by reconstructing the decision making process. This proved to be a long and arduous process. The district court rejected attempts by lawyers to substitute sworn statements and post hoc rationalizations for the Secretary’s decision and it sought to determine what actually occurred at the time the decision was made. After a twenty-five-day trial that included taking affidavits of the Secretary and testimony of his subordinates, the district court reversed the Secretary’s decision and remanded the case to the agency for another determination in accordance with applicable law. The Secretary ultimately concluded that the highway as planned violated the law. He was unable to show that use of the park land was the only prudent and feasible course, especially in light of the broad environmental protection objectives of statutes then in effect. Quite apart from the fact that Court...
- These types of conditions have both legal and policy effects. Since most of them are negotiated informally, they create law in an entirely informal manner. They usually come out of the bargaining phase of the administrative process and, as such, are not subject to the kinds of procedural checks found in more adversarial phases of the process. Given the often voluntary nature of the agreement between applicants and agency staff, neither the policy implications nor the respective merits of these conditions are likely to be reviewed either by the full commission granting the applications or a court reviewing the process.
- No one can deny the importance of flexibility, informality and an appropriate fit of procedure to substance. Nor can efficiency values be ignored, particularly in programs with enormous caseloads. But critics of ADR maintain that the application of these techniques to the administrative process do not always result in more expeditious dispute resolution. More fundamentally, ADR skeptics maintain that ADR can “replace the rule of law with nonlegal values” and that ADR “falls too far on the private law side of the public/private quandary, threatening rights-based jurisprudence and the rule of law, public accountability, and even the judiciary itself.” In one sense, ADR can be viewed as a procedural analogue to substantive decontrol. Carried too far, some techniques can, in effect, privatize administrative procedures raising not only philosophical and policy issues, but important constitutional and statutory questions as well.
- who argues that negotiated rulemaking “represents the latest outgrowth of a pluralist approach to administrative law”, and that in changing the standard of review, it may actually increase judicial involvement. By attempting to replicate the political process, agencies leave to the courts the difficult problems of how to develop legal standards “for identifying relevant interest groups, and for assessing the extent of their participation and the ‘negotiation’ process.”
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Chapter 13: Judicial Review of Agency Discretion 218 results (showing 5 best matches)
- Judicial review of such statutory and constitutional issues is fully in accord with the institutional expertise of the judiciary and the role that courts are expected to play in our constitutional system. Ever since it is “emphatically the province and duty of the judicial department to say what the law is.” By training and professional experience, judges are particularly adept at interpreting legal texts and resolving constitutional and statutory issues. As generalist judges—that is, Article III judges that rule on a wide variety of cases in addition to administrative law and to the administrative law of any particular agency—they bring an important added dimension to their interpretive task. They are not part of any administrative agency and have no particular regulatory mission to fulfill. As federal judges in particular, they also have a position with life tenure and a salary that cannot be lowered. Such institutional characteristics, reliant on judges’ professionalism, enhance...
- Nowhere does the Administrative Procedure Act mention judicial deference to agency determinations of law, yet elaborate doctrines of judicial deference have developed over the years. In fact, when and to what extent a court should defer to agency determinations of law in various contexts is a major battlefield in administrative law today. In examining these doctrines of judicial deference to agency law making, it is necessary to track the various types of questions of law involved, the different procedural contexts or formats in which agencies interpret the law and the substantive factual contexts which give rise to an issue under consideration.
- , this analogy differs in two respects when applied to the administrative process. Unlike a jury verdict in which a court will draw every inference in favor of the verdict, requires that courts take into account the record “as a whole” and consider evidence likely to detract from the administrative In addition, administrative agencies must describe their reasoning with “such clarity as to be understandable.”
- Over and above text, there is also evidence of a statute’s overall purpose These and other factors as well, such as the process by which an agency rendered its interpretation of the statute involved, can often result in differing views and approaches to statutory issues among the judges involved. Often underlying these methodological differences to statutory construction are deeper constitutional assumptions and concerns. Debates over separation of powers principles can also animate much of the conflict and disagreement in this area of administrative law. A unitary executive approach to statutory interpretation would place maximum interpretive discretion of ambiguous statutes in agencies, regardless of the procedural formats agencies may use to render these interpretations. disagreement that frequently divide courts reviewing agency interpretations of law, which we shall now examine in depth.
- 13.9.1 The Hard-Look Doctrine and Agency Procedure: Judicial Innovation and Administrative Common Law.
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Chapter 8: Formal Agency Adjudication 153 results (showing 5 best matches)
- The Administrative Procedure Act created the position of Administrative Law Judge (ALJ). Prior to this Act, hearing examiners, as they were then called, usually were “subordinate employees chosen by the agencies, and the power of the agencies to control and influence such personnel made questionable the contention of any agency substantially undermining the objectivity of the administrative process.
- Agency actions by their nature affect a broad range of public and private interests. Administrative law has witnessed a steady and continued expansion of public participation in most agency proceedings. It also reflects a pluralistic conception of the administrative process that sees the public interest as consisting of a tapestry of many strands. The public interest as well as the legitimacy of the agency’s decision-making process thus demands that important interests and viewpoints be represented.
- There are many variations on the adjudicatory themes we shall now set forth. As we shall see, the formal adjudicatory provisions of the APA are not always triggered by the relevant agency enabling act. Adjudicatory procedures, thus, can and do differ from agency to agency. Indeed, most administrative adjudication takes place before administrative law judges or presiding officers who lack the statutory independence of ALJs. ALJs are not constitutionally compelled. The Administrative Procedure Act, however, sets forth an important structural and procedural framework for agency adjudication. It is a basic touchstone that remains relevant today, even with the shift away from economic regulatory litigation to benefits litigation and given the variation in each agency’s own adjudicatory processes. Agency rules and regulations often provide for procedural protections that are not dissimilar from the APA. ...sections of this chapter will then examine the administrative structure...
- Subsequent developments in the law have rendered many of the Moreover, the APA addresses many of the problems presented in these cases. For example, Section 557 (b) of the APA provides that after an on the record trial-type hearing, the presiding employee, who usually is an Administrative Law Judge, “shall initially decide the case unless the agency requires, either in specific cases or by general rule, the entire record to be certified to it for decision.” Even if the agency does require this, the person who first presided usually must “first recommend a decision” which is then shared with the parties. With rare exceptions, as long as an agency provides reasons contemporaneous with its decision, the holding in that you cannot probe the mental processes of the decision makers involved remains good law. Finally, as we shall see below, the Administrative Procedures Act provides for the separation of agency investigatory and agency adjudicatory functions.
- In a formal adjudicatory proceeding, a fundamental principle of administrative law is that the decision maker must rely only on evidence that was produced at the administrative hearing and is thus a part of the administrative record. The APA thus requires that “[t]he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision.”
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Chapter 2: Rulemaking 115 results (showing 5 best matches)
- But while it eliminated hybrid rulemaking under the Administrative Procedure Act, left unchanged some of the more rigorous decisional process for rules that we have described in this chapter. The Court specifically approved one of these more exacting processes—the rulemaking record—as it said that courts must determine whether rules are “sustainable” based “on the administrative record made.” A reason for letting these processes stand appears to be this: These more rigorous processes for rules—that agencies fully reveal data and methodology, respond to material comments, and provide reviewing courts with a record of their decisional processes—were considered as processes prescribed by the Administrative Procedure Act itself.
- For a rule, the Administrative Procedure Act has two applicable parts. One part is about decisional processes, the other about the rule of law. As to decisional processes, the Administrative Procedure Act, by 5 U.S.C. § 553, provides that “the agency shall give interested persons an opportunity to participate in the rulemaking through submission of written data, view, or arguments.” By this provision, rulemaking is participatory (open to persons likely to be affected by a proposed rule) and comprehensive (assesses the range of interests at stake in a proposed rule). Also and as largely required by the courts, the decision process must be demonstrably rational: The agency must show that it “has … genuinely engaged in reasoned decision-making.”
- Hybrid rulemaking combines the thin processes of rulemaking with some of the intensive processes of adjudication, on the hope that the rule produced will be better and better supported by a record. The rise and fall of “hybrid rulemaking” under the Administrative Procedure Act is, however, a story of something else, the iron rule of decision costs.
- The constitutional legitimacy that inheres in Congress by virtue of its accountability to the electorate is absent, however, from the administrative process, and consequently, serious questions are continually being raised—and with increased frequency—regarding the legitimacy of the administrative apparatus within the framework of American government. Near the center of the growing concern over legitimacy lies the apprehension that the critical choices of our society will more and more be made by administrative personnel who are not, as a practical matter, accountable to anyone….
- Orders are contrasted to standards and rules in that they are associated with the lawmaking but with the law applying functions of agencies. An “order” is addressed to individuals. It ordinarily represents an agency determination that an individual has acted inconsistent with some rule or standard administered by it. The Administrative Procedure Act provides that “‘adjudication’ means agency processes for the formulation of an order.” 5 U.S.C.A. § 551(7). The Act’s rather broad and ambiguous definition of a rule is at 5 U.S.C.A. § 551(4). As an order is particular and personal, it is appropriately the product of the more intense and focused processes of the adjudicatory method. The distinctions between rules, standards, and orders are more fully discussed in Chap. 4, Sec. 4.5.
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Chapter 4: The Zone of Rulemaking 147 results (showing 5 best matches)
- As it authorizes Congress to make laws “necessary and proper” for the “executive” of power by the various powers of government, the Constitution acknowledges a fact. Because Congress is best situated to make system-wide judgments about how the power it deploys to agencies is implemented, it is best suited to set the processes by which agencies use that power. As regards agency lawmaking, Congress has established a process, that of Sections 553 and 552(a)(1) of the Administrative Procedure Act, which harnesses agency power by requiring it be exercised according to codified and published rules arrived at by a prescribed procedure. To be sure, this process in some instances diminishes an agency’s ability to exercise its power over private individuals as the agency at the time deems best. The agency may want the flexibility to act in an manner, to act outside the confinement of Section 553 and standing rules. A careful reading of the Administrative Procedures Act, however, shows...
- The Supreme Court has recognized that as the agencies produce rules they are in the business of producing laws, of the same order as those made by Congress. When an agency makes a rule, then, a legislative process of some sort is naturally called into question, and under the Administrative Procedure Act that process is rulemaking as established by Section 553. As said, a weakness in this rather straightforward approach—that rulemaking is for making rules—is that a consensus has not fully developed as to just when and how it is that an agency makes a rule.
- At times it said that the Administrative Procedure Act, as it provides for both rulemaking and adjudication, gives agencies the discretion to choose between the two. That view, though, is wrong; it ignores the terms of the Act. The Act itself, closely read, differentiates between rulemaking and adjudication so as to establish rulemaking as the sole process for making rules.
- Somewhat inaptly, the choice between rulemaking and adjudication has been referred to as a choice between legislative and common-law methods. More accurately, this choice may be expressed and explained, as Professor Colin Diver did in an influential article in the early 1980s, as one between the comprehensive processes of rulemaking and the incremental and sequential processes of adjudication. Otherwise, and perhaps more importantly, the choice may be viewed as between power-limiting processes (rulemaking) and power-enhancing processes (adjudication).
- Here, the Court, as we have previously discussed, was concerned with the relation of rulemaking and the rule of law, with assuring that agency authority be implemented through codified and published rules so as to insure a fair and even-handed distribution of law and its benefits and burdens. The Court held that under the Administrative Procedure Act, eligibility standards had to be established by published rules to assure that these standards were “being applied consistently and so as to avoid both the reality and the appearance of arbitrary denial of benefits.” The Court objected to what it characterized as “ad hoc determinations” by the agency, saying that The Administrative Procedure Act was adopted to provide, inter alia, that administrative policies affecting individual rights and obligations be promulgated pursuant to certain stated procedures so as to avoid the inherently arbitrary nature of unpublished ad hoc determinations.”
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Chapter 20: Agency Acquisition of Information Part 2 129 results (showing 5 best matches)
- We must not disguise the fact that sometimes, especially early in the history of the federal administrative tribunal, the courts were persuaded to engraft judicial limitations upon the administrative process. The courts could not go fishing and so it followed neither could anyone else. Administrative investigation fell before the colorful and nostalgic slogan “no fishing expeditions.” …
- For discussion of consent and conditions on government benefits, see generally, W. Van Alstyne,
- The Paperwork Reduction Act of 1995, 44 U.S.C.A. §§ 3501–3520, slightly amended the 1980 Act. For a discussion of the 1980 Act and its basic purposes, which remain relevant today, see generally Funk,
- “Nor does our reading of the statutes mean that under no circumstances may the court inquire into the underlying reasons for the examination. It is the court’s process which is invoked to enforce the administrative summons and a court may not permit its process to be abused. Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation. The burden of showing an abuse of the court’s process is on the [challenger]….” 379 U.S. at 58, 85 S.Ct. at 255 (footnotes omitted).
- In a dissenting opinion, Justice Day, joined by Justices Harlan and McKenna, first suggests that the purposes of administrative agencies are not only to investigate specific breaches of the law but also to investigate the manner in which interstate commerce business is conducted and managed. The dissent recognized that agencies needed the power to “prevent bad practices” and to afford them that power, the authorizing statutes must be interpreted broadly.
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Chapter 13: Judicial Review of Agency Discretion Part 2 196 results (showing 5 best matches)
- The case was appealed again and the Supreme Court reviewed it once more. In , the Court explained its view of the role of the administrative process and the respective roles that courts and agencies should play. In the Court’s view, a fundamental rule of administrative law was that a reviewing court must judge the propriety of an agency’s action solely by the grounds invoked by the agency. Were it to agree with the agency’s results, but then substitute a rationale supporting those results that it believed was more appropriate, it would “propel the court into the domain which Congress has set aside exclusively for the administrative agency.”
- Although hard look review usually shifts decision-making power from agencies to courts, in the early days of this doctrine, Judge Leventhal did not see it strictly in power terms. Nor did he see it necessarily as a substantive doctrine. Leventhal viewed it as part of a complex decision-making process, a process in which courts played an integral part. He saw judicial involvement of this sort as necessary for the good of the administrative process in general and agencies in particular.
- Judge Mikva relied on the legislative history of the Motor Vehicle Safety Act and congressional inaction in the face of various legislative attempts to modify the airbags rule. Judge Mikva noted that this rule had caused a great deal of debate in Congress, but Congress chose not to act. Though Congressional inaction of this kind can speak in many ways, Judge Mikva (a former congressman) interpreted it as a kind of congressional approval for the passive restraint rule, and an implicit expression of the will of Congress. With this view of the legislative process surrounding the administrative process, Judge Mikva went on to reiterate Judge Leventhal’s essentially procedural concept of the relationships of courts to agencies; “courts, administrative agencies, and Congress are partners, not adversaries. Courts do not substitute judgment for that of the agency, but ensure that agencies exercise their judgment only ..., it had not acted negatively and against this backdrop of legislative...
- , and, of course, , but its basic reasoning and common law approach to reviewing agency decisions, especially decisions about agency change, continues to be relevant today. It embodies questions that go to the heart of administrative law and agency decision making that continue to be debated today, often in the context of Is agency law ultimately a kind of disposable law that should be relatively easy to change as new administrations come to power? Or are the decisions made over time worthy of more respect because they also represent the best outcomes that expertise, deliberation and debate can produce over a period of time that is likely to transcend the election cycle? Is there a distinct common law cast of mind embodied in this doctrine and is it necessarily at odds with ’s rejection of administrative common law?
- Statutory Interpretation and the Balance of Power in the Administrative State
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Chapter 8: Formal Agency Adjudication Part 2 100 results (showing 5 best matches)
- Over the years, there has been much discussion of the intervention right and the need to allow for more effective public representation.
- Federal Administrative Law Judges: A Focus On Our Invisible Judiciary
- (“although the administrative process has had a different development and pursues somewhat different ways from those of courts, they are to be deemed collaborative instrumentalities of justice and the appropriate independence of each should be respected by the other”). Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (authorizing the probing of mental processes where the administrator made no contemporaneous findings or gave no explanation for his decision).
- ., Reorganization of the Federal Administrative Judiciary Act, H.R. 1802, 104th Cong. (1995); H.R. Rep. No. 104–879, at 65–66 (1997); Administrative Law Judge Conference of the United States Act. H.R. 3961, 105th Cong. (1998). See Daniel J. Gifford,
- was followed is the agency head, and if he or she cannot be questioned, there is little for the litigant to do. As Professor Schwartz stated: “[a]s a practical matter … what the Supreme Court said in rule as an enforceable principle of our administrative law.” Schwartz,
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Preface to the Third Edition 7 results (showing 5 best matches)
- In this book, we set forth a comprehensive analysis of administrative law in the United States. Administrative law continues to evolve in interesting ways in all of its various dimensions. New developments are significant and are here presented as such. Still, a main purpose of this work on administrative law—today as in 1991 and 2001, when our previous editions appeared—is to identify and analyze basic doctrines as they have come from Congress, notably under the Administration Procedure Act, and from the courts. As such, this third edition serves legal practitioners, scholars, and students. Our further aim is to provide a useful guide for professionals and scholars in any discipline who may be coming to administrative law and its interesting issues for the first time.
- I wish to thank all of my colleagues at Indiana University Maurer School of Law for their insights, comments and encouragement throughout. In particular, I thank Professors Paul Craig (of Oxford University and a regular visitor to the School) and Rob Fischman for many discussions of a wide variety of administrative law issues, and for sharing their insights so generously. Finally, I especially want to thank my wife, Carol Greenhouse, who deserves, by far, the largest thanks of all for her encouragement and belief in the project.
- In terms of the substance of administrative law, readers of this work will find evidence here of both continuity and change. Much of this book concerns the on-going development of administrative law along paths that are fairly continuous with the past. However, we also present areas where the paths have changed or are beset with ambiguity. Notably in the area of judicial review, the Supreme Court continues to wrestle with questions that have remained unsettled since the second edition—questions involving separation of powers analysis as well as the meaning and applicability of
- The basic structure of this book remains the same as that of the previous editions. The organization of our presentation remains as it was, so as to facilitate the comparison of past and current law for readers interested in doing so. Our division of labor in this joint effort has also remained as it was. Though we have read and commented on each other’s work, for this edition as in the past, the following chapters were largely produced as follows: Professor Aman wrote Chapters 8 and 9 on formal and informal adjudication, Chapters 13, 15, and 16 on judicial, executive, and legislative control of agency discretion, and Chapters 17, 18, 19, and 20 on agency information; Professor Mayton wrote the Introduction, Chapter 1 on the nondelegation doctrine, Chapters 2, 3, and 4 on rule making, Chapter 5, 6, and 7 on allocation of judicial power to agencies, the Seventh Amendment, and due process, Chapters 10 and 11 on consistency in agency action, Chapters 12 on the timing and availability...
- As was the case in earlier editions, this third edition has required the help, patience, and inspiration of many people. I wish to thank all of the librarians at the IU Maurer School of Law for their help and expertise throughout this project. I wish to thank, in particular, Keith Buckley, Assistant Director for Public Services, Michelle Botok, electronic services librarian and especially, Jennifer Bryan Morgan, documents librarian and Director of the library’s U.S. government depository program. I also wish to thank the students at the Maurer School of Law who, over the last several years, have helped me with the research for this update: Scott Breen, ’15, Jacob Davis, ’14, George Furtado, ’13, Justin Olson, ’13, Erica Oppenheimer, ’12, Michael Roose, ’12, Heather Shreve, ’12, Jessica Vizvary, ’13, Ryan Weiss, ’14, and Jacob Wood, ’13. I owe special thanks to Justin Olson and Heather Shreve, both of whom worked very intensively with me on this project far above and beyond the call...
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Chapter 9: Informal Agency Processes and Actions Part 2 133 results (showing 5 best matches)
- at 715. Chief Judge Posner came under criticism from some administrative law scholars when he referred to negotiated rulemaking as “a novelty in the administrative process,” and when he added that “[i]t sounds like an abdication of regulatory authority to the regulated, the full burgeoning of the interest-group state, and the final confirmation of the ‘capture’ theory of administrative regulation.” note 333 at 1363–65 (arguing that the Court misunderstood the negotiated rulemaking process).
- Administrative Equity
- Points On A Continuum: Dispute Resolution Procedures and the Administrative Process
- Mashaw and Harfst,
- Informal agency processes have occasionally come under scholarly scrutiny. Some of these studies look at the process in a general way.
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Chapter 13: Judicial Review of Agency Discretion Part 3 163 results (showing 5 best matches)
- deference if they engage in more elaborate processes—will find it more difficult to change policies once those new rules are in place.
- agencies and courts together constitute a “partnership” in furtherance of the public interest, and are “collaborative instrumentalities of justice.” The court is in a real sense part of the total administrative process, and not a hostile stranger to the office of first instance. This collaborative spirit does not undercut, it rather underlines the court’s rigorous insistence on the need for conjunction of articulated standards and reflective findings.
- Administrative Law in a Global Era: Progress, Deregulatory Change, & The Rise of the Administrative Presidency
- This rationale is similar to that provided by Judge Frank at the height of the post New Deal deference era. Urging, in dissent, that the court overturn a certain ICC order, Judge Frank argued: “To condone the Commission’s conduct here is to give aid and comfort to the enemies of the Administrative process, by sanctioning administrative irresponsibility; the friends of that process should be the first to denounce its abuses.” Old Colony Bondholders v. New York, N.H. & H.R. Co., 161 F.2d 413, 451 (2d Cir.1947),
- Recommendations by the Administrative Conference of the United States: The Administrative Record in Informal Rulemaking, Administrative Conference Recommendations, 2013–14, adopted June 14, 2014 (www.acus.gov/recommendations)(“offers best practices for agencies in the compilation, preservation and certification of records in informal rulemaking, and supports the judicial presumption of regularity for agency administrativew records except in certain limited circumstances”). The administrative record can be essential to judicial review of agency decision making under the Administrative Procedure Act (APA), which directs courts to “review the whole record or those parts of it cited by a party” to determine whether challenged agency action is lawful. This statutory language was originally understood as referring to formal proceedings. However, the Supreme Court has long interpreted this APA provision as also encompassing the “administrative record” in informal agency proceedings,...
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Chapter 12: The Availability and Timing of Judicial Review Part 2 146 results (showing 5 best matches)
- “Exhaustion” applies where a claim is cognizable in the first instance by an administrative agency alone; judicial interference is withheld until the administrative process has run its course. “Primary jurisdiction”, on the other hand, comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.
- 401 U.S. at 640, 91 S.Ct. at 1103. And in
- One view is that “It may reasonably be said that these two new remedies, certiorari ‘to quash’ and mandamus, made possible the whole complex structure of modern administrative law”. E. H
- 814 F.2d 731, 740 (D.C.Cir.1987). The court further explained that “‘Halting or delaying an administrative proceeding whenever a party is able to allege a constitutional question that is not frivolous’ would produce the very interference with agency processes that exhaustion doctrine is designed to prevent.” Also, agency processes might render the constitutional issues moot, and in doing so serve the principle of avoiding gratuitous constitutional decisions by courts.
- 8 Co.Rep. at 121, 77 Eng.Rep. at 657. In support of his finding that administrative decisions were traversable in an action for false imprisonment, Coke distinguished between the office of a judge, which was recognized by statute, and the offices of administrative officials, which were not similarly recognized. In this regard, Coke stated that
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Chapter 6: Seventh Amendment and the Agencies 45 results (showing 5 best matches)
- the argument was that absent a jury, the process was constitutionally deficient. This argument was brought by an employer, which after exhausting the administrative process offered by the Commission found itself assessed with a $600 civil fine. As the employer saw it, stood for the proposition that general rules of law backed by money fines required a jury trial. The employer claimed that “a suit in a federal court by the government for violation of a statute … is classically a suit at common law.” The Supreme Court did not exactly deny that argument, that a suit for damages for violation of a statute was “classically a suit at common law.” Instead, the Court found that it was misapplied, because here the civil action was in an and not a The Supreme Court justified this distinction between courts and agencies by resort to the historical method and by a new angle under this method.
- Apparently because it considered common-law remedies for unsafe working conditions to be inadequate, Congress enacted the Occupational Safety and Health Act. The Act establishes a statutory duty on the part of industry to avoid unsafe or unhealthy working conditions and authorizes the Secretary of Labor to promulgate safety and health rules toward these goals. Under the Act, civil penalties of up to $10,000 may be assessed against employers who violate these rules. The employer may challenge such an assessment in an evidentiary hearing before an administrative law judge. This hearing is reviewable by the Commission, and then a final order as rendered by the Commission is subject to review by a federal court of appeals. On review, the Commission’s factual findings are conclusive if supported by substantial evidence. In that process (in an area occupied by the common law) there is no jury.
- We cannot conclude that the [Seventh Amendment] rendered Congress powerless—when it concluded that remedies available in a court of law were inadequate to cope with a problem within Congress’ power to regulate—to create new public rights and remedies by statute and commit their enforcement, if it chooses, to a tribunal other than a court of law—such as an administrative agency—in which facts are not found by juries.
- Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevented from committing some new types of litigation to administrative agencies with special competence in the relevant field…. This is the case even if the Seventh Amendment would have required a jury where the adjudication of these rights is assigned to a federal court of law instead of an administrative agency.
- Probably, the substance of the Supreme Court opinions about agencies and the Seventh Amendment is simply that trial by jury is “incompatible” with an “administrative forum,” and that to save this forum, the Court has held agencies free of a jury requirement. Undoubtedly, when all was said and done by the Court in
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Appendix: Statutory Appendix 468 results (showing 5 best matches)
- (A) no interested person outside the agency shall make or knowingly cause to be made to any member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably be expected to be involved in the decisional process of the proceeding, an ex parte communication relevant to the merits of the proceeding;
- (B) no member of the body comprising the agency, administrative law judge, or other employee who is or may reasonably expected to be involved in the decisional process of the proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the proceeding;
- This subchapter, chapter 7, and sections 1305, 3105, 3344, 4301(2)(E), 5372, and 7521 of this title, and the provisions of section 5335(a)(B) of this title that relate to administrative law judges, do not limit or repeal additional requirements imposed by statute or otherwise recognized by law. Except as otherwise required by law, requirements or privileges relating to evidence or procedure apply equally to agencies and persons. Each agency is granted the authority necessary to comply with the requirements of this subchapter through the issuance of rules or otherwise. Subsequent statute may not be held to supersede or modify this subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 of this title, or the provisions of section 5335(a)(B) of this title that relate to administrative law judges, except to the extent that it does so expressly.
- The purpose of this subchapter is to establish a framework for the conduct of negotiated rulemaking, consistent with section 553 of this title, to encourage agencies to use the process when it enhances the informal rulemaking process. Nothing in this subchapter should be construed as an attempt to limit innovation and experimentation with the negotiated rulemaking process or with other innovative rulemaking procedures otherwise authorized by law.
- (I) the median and average number of days for the agency to respond to administrative appeals based on the date on which the appeals originally were received by the agency, the highest number of business days taken by the agency to respond to an administrative appeal, and the lowest number of business days taken by the agency to respond to an administrative appeal;
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Chapter 12: The Availability and Timing of Judicial Review 286 results (showing 5 best matches)
- The government interest was grounded in efficiency. If McKart avoided Selective Service processes other registrants would do the same and that would degrade orderly and efficient action in an important effort. But that was not a compelling enough interest. As said by the Court, here the “very presence of criminal sanctions is sufficient to ensure that the great majority of registrants will exhaust all administrative remedies before deciding whether or not to continue the challenge to their classifications.” Otherwise, McKart’s “sole surviving son” defense was a matter of statutory construction that “not require any particular expertise” by the Select Service nor did it involve the Service’s “discretion.” Moreover, the law favored McKart’s on his sole-surviving-son defense. Here the exhaustion of administrative remedies would have defeated a clear error of law, which the Court would not allow. Past the
- quite rightly acknowledges that by means of Sec. 704 the Administrative Procedure Act addresses exhaustion of remedies, it is wrong to think that either or Sec. 704 displaces the common law of decades of administrative law. It’s better sense that Sec. 704 underwrites that common law.
- Still, if a party seeks to avoid a statutorily prescribed administrative process, resort to that process is the norm and , the Commission had issued a complaint, alleging price fixing, against six title insurance companies. The companies claimed that in issuing the complaint, the Commission had assumed a prosecutorial function that Article II of the Constitution assigns to the executive branch. Rather than abiding the statutory form of review—a Commission hearing and an appeal from the hearing—these companies sought immediate judicial review. Immediate review, they argued, was warranted because they challenged the constitutionality of the process to be exhausted. The companies claimed that the Commission, as an agent of Congress, was not competent to decide that its principle, Congress, had acted unconstitutionally. The court, however, required them to exhaust their remedies, constitutional claims or no, because they had not met the exception for a “clear” violation of law.
- Sec. 704 of the Administrative Procedure Act, as it provides that “[a]ction made reviewable by statute and final agency action for which there is no adequate remedy in a court are subject to judicial review,” is Congress’s own prescription of exhaustion of administrative remedies. In , the Court addressed a longstanding problem in administrative law. The problem was whether discretionary appeals, to a higher agency authority, from a decision by an administrative law judge had to be exhausted before that ALJ decision could be reviewed by a court. In the instant case, a lower court had refused to review an ALJ decision that was subject to such a discretionary appeal to the head of the agency. That court reasoned that intra-agency appeal had to be exhausted prior to judicial review.
- In light of these matters, the courts usually justify exhaustion of administrative remedies in terms of enhancing agency processes. The doctrine allows “an administrative agency to perform functions within its special competence—to make a factual record, to apply its expertise.” Also, the courts are not unaware of how the doctrine serves them, the courts, as well. A record as first developed by the agency should be useful to the courts. And at times the doctrine may remove the need for judicial review, in those cases when the agency gives a complainant the relief she seeks.
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Chapter 1: The Nondelegation Doctrine 88 results (showing 5 best matches)
- In the last several years, Congress has been concerned about the insularity of agency decisional processes and has put controls in place to broaden these processes. It has identified certain values, such as preservation of the environment, and then by legislation (such as the National Environmental Policy Act, 42 U.S.C. § 4321 required agencies to include these values in their decisional processes). The Regulatory Flexibility Act, 5 U.S.C. § 601, is another example of this sort of value-enhancing act. It directs agencies to consider regulatory alternatives such as might be less injurious to the interests of small businessmen. For a general discussion and description of congressional acts directing agencies to include certain values in their decisional processes, see Diver,
- Two Roads to Serfdom: Liberalism, Conservatism, and Administrative Power
- Daughters of Miriam Center for the Aged v. Mathews, 590 F.2d 1250, 1257 (3d Cir. 1978) (“The constitutional legitimacy that inheres in Congress by virtue of its accountability to the electorate is absent, however, from the administrative process, and consequently, serious questions are continually being raised—and with increased frequency—regarding the legitimacy of the administrative apparatus within the framework of American government. Near the center of the growing concern over legitimacy lies the apprehension that the critical choices of our society will more and more be made by administrative personnel who are not, as a practical matter, accountable to anyone.”).
- The Court, as it overturned the delegation of law-making power in , formally did so because of Congress’s failure to confine and condition this power by substantive and procedural controls. Respecting substance, the Court found that the NRA had been delegated a largely unfettered power over an enormously broad subject matter: “The vast array of commercial and industrial activities throughout the country.” Respecting procedures, the Court noted that other broad delegations, to the Federal Trade Commission, the Interstate Commerce Commission, and the Federal Radio Commission, had been accompanied by at least a minimal set of procedural controls. “The National Industrial Recovery Act,” the Court then said, “dispenses with this administrative procedure and, with any administrative procedure of an analogous character.”
- “Circumspection in forming the law” was especially run down. Because the NRA was relatively unconfined by procedures, and given the like-mindedness of the participants in the process (conflicting interests such as consumers or labor had, as we said, been excluded), decision costs at the NRA were minimal. And so it pumped out the Codes. The NRA “in the course of its short life from August 1933 to February 1935 … formulated and approved 546 codes and 185 supplemental codes filling 18 volumes and 13,000 pages; and 685 amendments and modifications.”
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Chapter 20: Agency Acquisition of Information 143 results (showing 5 best matches)
- But if illegitimate motives are proved, the court will interfere in the administrative process and refuse to invoke judicial process to enforce agency authority that is being used abusively and in bad faith. deferred to the Commissioner’s determination of the scope of his investigatory powers and upheld the enforcement of a subpoena issued by the Internal Revenue Service, under the authority of the Internal Revenue Code. The Court, however, warned that it would inquire into the legitimacy of an investigation when given cause in order to prevent abuse of judicial process. Court, involved a showing by the agency that the investigation was conducted pursuant to a legitimate purpose, that the inquiry was relevant to that purpose, that the information sought had not already been within the agency’s possession and that the administrative steps required by the Code were followed.
- Section 555 of the Administrative Procedure Act states: “Process, requirement of a report, in section or other investigative act or demand may not be issued, made or enforced except
- A review of what happens when an agency faces a contumacious witness helps to clarify the enforcement process. Upon refusal of a party to comply with an agency order, either by submitting a refusal or by simply letting the date of compliance pass, the Department of Justice will usually file a petition on behalf of the agency for enforcement in the appropriate federal district court. The court will then review the request of the agency and either uphold its validity and issue a compliance order or invalidate it. What the court may look to in determining whether to enforce the subpoena and how the noncomplying party may challenge the subpoena are often the subject of the proceeding. The Administrative Procedure Act, which provides that courts shall enforce the subpoena so long as it is “found to be in accordance with law,” is not much guidance. Judicially created standards of validity, however, have been created and usually are relied upon to review agency orders.
- Generally, privileges are vague, developed through the common law, and have but limited force in administrative proceedings.
- The Court was unconvinced by the administrative burden argument and did not think that a warrantless inspection was essential to OSHA’s effectiveness. The Court reasoned that most businessmen can be expected to consent to inspection without notice. Furthermore, the Secretary had already promulgated a regulation providing compulsory process in situations where permission was refused. Under this regulation, “the Act’s effectiveness has not been crippled by providing those owners who wish to refuse an initial requested entry with a time lapse while the inspector obtains the necessary process.”
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Chapter 5: Allocation of Judicial Power 64 results (showing 5 best matches)
- Congress has, however, provided for an internal separation of functions so as to establish a measure of independence for agency personnel engaged in judging. By means of the Administrative Procedure Act, Congress has provided that agency adjudicatory hearings are to be presided over by “administrative law judges” whose appointment, salary, and tenure are controlled not by the agencies but by the Civil Service Commission. Within the agency, administrative law judges are further insulated from the prosecutorial side of the agency as the Administrative Procedure Act provides that these judges “may not … be responsible to or subject to the supervision or directions of an employee or agent in the performance of investigative or prosecuting functions for an agency.” These Administrative Procedure Act provisions, which establish something of an internal separation of functions, are discussed more fully in Chapter 8.
- 5 U.S.C. § 554(d)(2). The success of these Administrative Procedure Act provisions in assuring that administrative law judges are insulated against agency pressures, is a matter of debate. A harsh assessment is that “‘Rather than having the independence of a district court judge, they are essentially on the payroll and subjected to the pressures of agencies.’” Moss,
- Analyzing allocations of judicial power to agencies by reference only to due process may truncate analysis. Due process focuses on whether an agency provides a “fair” hearing, by which we mean such things as whether it reaches accurate results while respecting the autonomy and dignity of the person. . While this sort of focus on fair procedures is of course important, it may be too limited. This focus does not reach the structural functions assigned to Article III courts (such as an inclination to keep the other parts of government within their constitutional spheres and an aptitude in “mitigating the severity” of laws passed by Congress) and whether a rerouting of judicial power to agencies might diminish these functions. Of course, due process might be broadly construed to include these matters—open-ended constructions of due process are not unheard of. But such overloading has to weaken due process in its core function of assuring fair procedures to the individual facing the...
- The reasons for allocating judicial power to administrative agencies, as Congress has done, are several. Advantages of specialization are gained by assigning a single function, e.g., deciding Social Security disability claims, to a single body staffed by experts. With such an assignment, procedures streamlined for that function can then be better developed and applied. Such expertise and streamlined procedures contribute to the “inexpensive and expeditious” processes that Congress has favored for so many public programs and that the courts have so often approved.
- Although the Constitution says that the “judicial Power of the United States, shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish,” much of that power is instead exercised by administrative agencies. These agencies typically determine whether the conduct of individuals conforms to the laws that agencies implement. As agencies make these determinations, they find facts and interpret statutes and other sources of federal law. In this capacity they perform a judicial function equivalent to the federal question jurisdiction of federal courts under Article III.
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Chapter 15: Executive Control of Agency Discretion 206 results (showing 5 best matches)
- contacts between an agency and the President, or a member of the President’s staff, are not the only avenues through which the executive branch has sought to expand its influence over informal rulemaking processes. Since the rise of the administrative state in the early 20th century, Presidents have sought myriad ways to align agency action with their political priorities. President Bill Clinton used three techniques to shape the administrative state of his Presidency. These included OMB , formal directives (generally styled as memoranda to the heads of departments) instructing one or more agencies to propose a rule or perform some other administrative action within a set period of time , and personal appropriation of agency action. Clinton’s use of formal directives became his primary avenue both for setting an administrative agenda that aligned with his political priorities and ensuring execution of such programs. While the use of executive orders directing particular agency...
- Even with some of the cutbacks in the 1990s and a slowing of the overall rate of growth of the federal government, it is not possible for a President to be confident of his control of domestic policy by simply maintaining good relations with or control of Congress. The administrative process itself has become an important and significant source of new policies and executive involvement with and control of that process has increased.
- Most OMB review occurs before any proposed agency rules have been submitted to the public for notice and comment. Certain policy issues can easily be dealt with behind the scenes. Once an informal rulemaking process is publicly underway, however, questions arise concerning the appropriate role the executive branch can or should play at this stage of the process. Can the executive branch, for example, engage in ex parte contacts designed to influence the outcome of the rulemaking process? This question raises a number of issues that go to the heart of the executive branch’s relationship to the administrative process, issues where the APA offers little or no guidance. Section 553, for example, makes no mention of ex parte contacts, and judicial imposition of such a rule may raise
- There are many reasons why presidential control over the administrative process has been increasing. The President is in a good position to centralize and coordinate the regulatory process; he is electorally accountable, has a national constituency and is less likely to be as myopic as some single mission agencies can be. He can also focus and energize an increasingly large and diverse bureaucracy and be involved in the early planning stages of regulatory policy. There are, however, some constitutional, statutory and institutional problems that can arise when executive oversight is too vigorous.
- Congress reacted to the changes in OMB’s power and role by imposing new controls. In 1976, Congress passed legislation making the appointments of OMB Director and Deputy Director subject to Senate confirmation. As a result, the General Accounting Office’s power increased, giving it greater program evaluation functions and increased oversight responsibilities concerning potential Presidential impoundments of funds. thereby ending OMB’s monopoly on the processing of agency budget requests. Finally, Congress severely reduced the President’s authority to impound agency funds and consequently shape policy. Congress, however, failed to divorce completely the presidency from the administrative process and OMB retained substantial policy-making responsibilities.
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Part 3: Consistency in Agency Action 1 result
- In administrative law consistency is, or should be, assured and erratic agency action avoided, by assigning agency action to published rules and standards. Consistency also has a rather specific application, for persons whom an agency has dealt with on a particular basis. In this context, consistency is maintained according to doctrines borrowed from the courts and common law, these doctrines being res judicata and promissory estoppel.
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Chapter 15: Executive Control of Agency Discretion Part 2 149 results (showing 5 best matches)
- Politics, Policy and Outsourcing in the United States: The Role of Administrative Law
- For an analysis that seeks to place the shift from governmental regulation to markets approaches in a global and comparative context, see Alfred C. Aman, Jr.,
- . 2245, at 2285 (2001) (“The final piece of Clinton’s brand of presidential administration lay in his public assertion of ownership of agency action. Clinton himself unveiled, regardless whether he earlier had ordered formally, quantities of administrative work product—reports, grants, regulatory waivers, guidance, rulings, regulations, even lawsuits. Forums for these announcements included major and minor speeches, public ceremonies and events, news conferences, and radio addresses. This mechanism of appropriation, even though used at the back end of the administrative process, further enhanced Clinton’s ability to shape the nature and content of regulatory action.”).
- Judicial Review of Informal Agency Action on the Fiftieth Anniversary of the APA: The Alleged Demise and Actual Status of
- Who Shapes the Rulemaking Agenda? Implications For Bureaucratic Responsiveness and Bureaucratic Control
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Chapter 11: Consistency and the Doctrine of Res Judicata and Promissory Estoppel 90 results (showing 5 best matches)
- generally provides that “final determinations by an administrative tribunal have the same effects under res judicata … as a judgment of a court.” This approbation, however, is conditioned on whether the proceeding in that tribunal “entail[s] the essential elements of adjudication.” The Supreme Court has set the same condition, which is that the agency acts in “a and resolves disputed issues of fact properly before it which the parties have had Given the various forms of agency action, it cannot be presumed that all actions characterized as adjudicatory in fact conform to the essential elements of adjudication. Consequently, this “essential elements” condition has considerable importance in administrative law, so that the applicability of res judicata cannot be “viewed in isolation from the administrative process.”
- Today, agency adjudication, as it has been improved by the Administrative Procedure Act and due process, is better thought of. Consequently, the “well settled doctrine that that res judicata and equitable estoppel does not ordinarily apply to decisions of administrative tribunals,” Churchill Tabernacle v. FCC, 160 F.2d 244 (D.C.Cir. 1947), has abated. R
- While the private law elements of promissory estoppel are necessary to establishing a case against the government they are not sufficient, given that “government may Considerations such as rule of law, separation of powers, sovereign immunity, and an appropriate regard for the fiscal and administrative integrity of public programs are reasons for this difference. Still, there are the few times and cases, as we shall now discuss, where government has been bound by promissory estoppel.
- Because of expectations of predictability and even-handedness in agency action, the idea of government according to standing rules is a powerful force in administrative law. A point made over a century ago, by Judge Sanborn as he reversed an agency that had deviated from its statements, is “rights [were not] left to the arbitrary and whimsical discretion of the officers before whom their cases happened to arise, without law or rule to guide them.” The modern Supreme Court is in accord: “When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined.”
- The essential elements of administrative adjudication are basically those of a fair hearing. The identifies these elements as notice, the opportunity “to present evidence and legal argument in support of the party’s contentions and fair opportunity to rebut evidence and argument by opposing parties,” and a decision under identified rules of law. The decision must be in reference to “specified parties concerning a specific transaction, situation, or status.” Moreover, the requires a “rule of finality” that specifies “a point in the proceeding when presentations are terminated and a final decision is terminated.”
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Chapter 18: The Privacy Act 152 results (showing 5 best matches)
- The U.S. government favors voluntary compliance with industry standards. Even those who favor such an approach, however, confess that so far, the voluntary approach has not yielded satisfactory results. They advocate more entrepreneurship in adapting technology to the needs of consumers and data protection. A world of possibilities lies implicit in the particular computer code being used. Sophisticated methods have been devised to protect consumer privacy. Still other commentators argue for government intervention, advocating that the government codify certain voluntary standards into law. “The regulation of the treatment of personal information would secure participation by citizens in the communications process. Moreover, in commercial speech cases, courts are willing to uphold regulations if the government can regulate the underlying economic activity.” Simitis adds “[d]espite their different approaches to the problem, statutes, drafts, administrative procedures, court decisions,
- ., under the “whole systems” exemptions applicable by regulation to CIA files, law enforcement records and selected federal personnel administrative records. 5 U.S.C.A. § 552a(j), (k).
- Wilborn v. Department of Health and Human Services, 49 F.3d 597 (9th Cir.1995) (administrative law judge violated Privacy Act by including in an opinion a reference to discipline, which had been imposed upon an attorney while he was employed by the agency).
- Frequent users of the Privacy Act are often agency and government employees who are (by virtue of their jobs) aware of the Act and its requirements. Thus, many of the amendment actions have involved changes sought in employment records or promotion/performance rating situations. Courts have tended to dismiss the claims of plaintiffs who appear to be resorting to the Act only to engage in a collateral attack on an adverse administrative decision. Courts also do not permit actions against an agency seeking to alter documents that accurately reflected the agency’s administrative finding, even though that finding is contestable. The amendment remedy of the Act is thus applicable in practice only to proven factual errors and patently false or unsupported judgments and not to disagreements over which they might reasonably be differences of opinion. Moreover, the general and specific exemptions of the Act often serve to shield some types of data (e.g., law enforcement records) from the...
- The Act is as much a records management law as a privacy protection law. Agencies are required to maintain records used to make “any determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” Agencies are also required to establish “appropriate administrative, technical, and physical safeguards to insure [sic] security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained.” Agency rulemaking regarding privacy compliance and implementation is conducted pursuant to the informal notice and comment provisions of APA § 553.
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Part 2: Agency Adjudication 4 results
- This part addresses these various matters—Article III, the seventh amendment, due process, and the Administrative Procedure Act—as each of them pertain to agency adjudication.
- Another set of issues arises inside the agency. Here, the assumption is that agencies constitutionally hold judicial power and the concern is how, within the agency, this power is exercised. There are two main sources of control respecting how an agency exercises adjudicatory power. One source of control is the due process clauses of the fifth and fourteenth amendments. Presently, the institution that exercises this control is the courts. Apart from the courts and due process, the other main source of control is the body that creates agencies, the legislature. For federal agencies, Congress has, by means of the Administrative Procedure Act, established a basic set of procedures for agency adjudication.
- Agencies routinely determine whether a person’s conduct conforms to the laws they implement and impose sanctions when a person has acted wrongfully. This application of law constitutes adjudication, and this fact of agency adjudication raises various issues. One set of issues involves how an agency can be assigned judicial power under a constitutional structure that at least nominally places that power in courts especially constituted to receive it. Under the federal Constitution, Article III defines the judicial power of the United States and then provides for federal courts to receive that power.
- Another issue associated with adjudication is that agencies frequently assess money remedies such as civil fines, reparations, or back-pay. Agencies do so, of course, without juries; juries being incompatible with the structure and function of agencies. This omission, however, ought to be squared with the right to a jury trial as guaranteed by the seventh amendment.
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Chapter 17: Citizens’ Access to Governmentally Held Information 181 results (showing 5 best matches)
- then evolved into a “Low (b)(2)” exemption and a “High (b)(2)” Exemption. The Low (b)(2) Exemption covered agency personnel rules, internal agency practices, and matters sufficiently related to such rules or practices. Included within the scope of the Low (b)(2) Exemption were “trivial administrative data such as file numbers, mail routing stamps, initials, data processing notations, and other administrative markings.” High (b)(2) Exemptions, however, covered “predominately internal documents the disclosure of which would likely circumvent agency regulations and statutes.” records that would reveal “sensitive administrative instructions,” and information that would reveal prison procedures.
- The deliberative process privilege is invoked to “prevent injury to the quality of agency decisions.” Ideally, Exemption 5 serves to encourage open and frank discussion between agency superiors and subordinates, to protect against premature disclosure of unadopted policies, and to guard against public confusion generated by disclosed but ultimately unrelied-upon rationales. Such a “deliberative process” communication or document must be predecisional and part of the decision-making process; statements of policy and final decisions that have force of law A persistent and unsettled Exemption 5 deliberative process issue is the distinction between facts and decisional process material. “Facts” are “generally available for discovery,” but may be withheld if “inextricably intertwined” with deliberative material, or “if the manner of selecting or presenting those facts would reveal the deliberative process.”
- To determine whether a document was “compiled for law enforcement purposes” under Exemption 7, courts distinguish between agencies that have mixed law enforcement and administrative duties, and agencies that only have law enforcement duties. A mixed-function agency usually must to show that the requested records pertain to the enforcement of a statute or regulation within the authority of the agency and that the records were compiled for “adjudicative or enforcement purposes.” Information that an agency did not initially obtain or create for law enforcement purposes may still qualify for exemption if the information is later compiled for a valid law enforcement purpose, but before “the Government invokes the Exemption.”
- Under “unusual circumstances,” an agency may extend the twenty-day limit if it formally notifies the requestor in writing why the extension is needed and when the determination of the request will be made. Unusual circumstances are defined by FOIA as: 1) the need to search for and collect records from separate offices; 2) the need to search for, collect, and examine a voluminous amount of records “demanded in a single request”; and 3) the need to consult with another agency or two or more components. Administrative appeals must be decided within twenty days. unless unusual or exceptional circumstances regarding the processing of the request exist.
- In addition to clarifying the definition of “agency record,” the 1996 Amendments included numerous administrative innovations: the multitrack processing of requests was added to FOIA, and the “exceptional circumstances” clause (under which a court may extend an agency’s response time) was clarified.
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Chapter 19: Government in the Sunshine Act 62 results (showing 5 best matches)
- Declaring that “the public is entitled to the fullest practicable information regarding the decision-making processes of the Federal Government,” Congress passed and President Ford signed the Government in the Sunshine Act in late 1976. and prohibits communications to and by agency personnel in formal adjudicatory or hearing situations. communications is designed to preserve the authenticity of the administrative record for purposes of justification and review, and to insure fairness and due process in agency decision-making. The majority of the Act deals with the open meeting requirements. The underlying premise of the Act is that open meetings will lead to a greater public trust and confidence in government.
- Agency members’ deliberations in public are likely to be more restrained and artificial when conducted in the spotlight of public scrutiny. Rather than appear uninformed at a meeting, an agency member might prefer to acquiesce on an issue, instead of demanding that the matter be explained and justified. Debate and critical analysis often may give way to posturing, politicking or silence. Respondents in an Administrative Conference study reported an increase in pre-meeting decisions, more reliance on staff-formulated position papers, and a greater willingness to dispose of matters via notation voting, suggesting that frank discussion and constructive disagreement is less likely at open meetings. Indeed, the authors of the study point to the impairment of the collegial decision-making process as one of the most troublesome and counterproductive effects of the Act.
- See, e.g. Special Committee, Administrative Conference of the United States, Report & Recommendation by the Special Committee to Review the Government in the Sunshine Act
- § 552b(b) (emphasis added). By specifically alluding to “members”, defined in Subsection (a)(3) as individuals who belong to a collegial body heading an agency, the statute appears to apply only to meetings of agency heads themselves. Because agency policy and direction is frequently determined by regional and departmental meetings of subordinates, on whose reports agency heads rely, most of the actual administrative decision making process remains inaccessible to the public.
- at § 10(b) and (c). Perrett and Wilkerson,
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Chapter 16: Legislative Control of Agency Discretion 91 results (showing 5 best matches)
- Perhaps the most visible and most effective means through which Congress can exert influence over administrative agencies is through the appropriations process. appropriations committees to review agency performance, and affect future agency policy by changing the levels of funds appropriated for certain purposes. In contrast to passage of new or amending substantive legislation, appropriations-sourced corrective legislation places the political burden largely upon the President, rather than Congress itself. With the rise in size and complexity of the federal government, the appropriations process has taken on a life of its own. No longer are single substantive policy decisions given correspondingly narrow appropriations bills. ...appropriations riders into a single bill for passage, presentment and signature by the President. If the President disagrees with Congressional treatment of a particular agency funded by a consolidated appropriations bill, the President is faced with...
- A study of three-person Administrative Law Judge panels revealed that their decisions showed less variability than single ALJs.
- These decisions, which can and often do have the effect of making certain agency programs obsolete, are easily made without any ostensible change to the existing statutes. Congress can, however, also use the appropriations process to amend the statutory laws under which an agency operates. Members of Congress can include limiting language in the small print of the appropriations bill, which will become law unless a member challenges it on the House or Senate floor. Often this small print imposes substantial conditions upon the use of appropriated funds not previously restricted by law.
- 4 (1996) (noting that the increased congressional accountability may justify the additional administrative burden); Daniel Cohen and Peter L. Strauss, . 95 (1997) (concluding that agencies may take steps to limit their exposure to the congressional review process, which would cause a reduction in agency transparency and accessibility; the overall effect of the review process being increased costs with very little benefit gained).
- These federal corporations take various forms and the relative mix of private and public power affect the application of the state action doctrine. The state action doctrine looms large in determining the extent to which administrative law or constitutional law will apply to these entities. If the federal government can simply avoid constitutional protections by corporatizing governmental agencies, form will clearly have triumphed over substance. The court concluded that this should not be the case in The Supreme Court held that a “corporation is an agency of the government, for purposes of constitutional obligations of the government rather than ‘privileges of the government’, when the state has specifically created that corporation for the furtherance of a governmental objective and does not merely hold some shares but rather controls the
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Table of Contents 119 results (showing 5 best matches)
- § 13.9.1 The Hard-Look Doctrine and Agency Procedure: Judicial Innovation and Administrative Common Law
- § 8.4 The Administrative Adjudicative Process
- § 8.5.2 The Administrative Law Judge
- § 12.7.1 The Administrative Law Origins of Standing
- § 4.5.3 Administrative Procedure Act Constraints on the Choice Between Adjudication and Rulemaking
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Chapter 14: Money Damages 119 results (showing 5 best matches)
- But should this immunity, to the various participants in the judicial process in courts, be extended to agency adjudication? In the Court said yes, because of what it saw as functional similarities between courts and agency adjudication. The majority in explained that “[j]udges have absolute immunity not because of their particular location within the Government but because of the special nature of their responsibilities,” and “[a]djudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.” Therefore, the Court held that all the departmental officials involved in the adjudicatory process against the plaintiff were gained absolute immunity. These officials included the hearing officer, “agency official[s] performing certain functions analogous to those of a prosecutor,” and “agency attorney[s] who arranged for the presentation of evidence...
- These tasks require difficult judgments, and these judgments often bear down on the public so as to offend them and to make them likely plaintiffs. The teacher who disciplines, the policeman who searches and arrests, these officials and many others like them have to make difficult judgments that are painful to those subject to them. And these people may be disposed to retaliate through litigation. The Supreme Court has said as much, as it spoke about retaliatory litigation as provoked by vigorous public action, “there is a serious danger that the decision to authorize proceedings will provoke a retaliatory response. An individual targeted by an administrative proceeding will react angrily and may seek vengeance in the courts.” The Court added “A corporation will muster all of its financial and legal resources in an effort to prevent administrative sanctions. ‘When millions may turn on regulatory decisions, there is a strong incentive to counterattack.’”
- This immunity was established by reference to the absolute immunity that courts have, and the Court surveyed both the historical and logical and bases of that immunity. In terms of history, the Court absolute immunity had been “‘the settled doctrine of the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country.’” From the standpoint of logic, the Court noted that certain “safeguards” were built into the court process and that these safeguards mitigated the need for judicial liability for misdeeds. These safeguards included the “insulation of the judge from the political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctibility of error on appeal.” These safeguards pertained not just to judges, but to other participants in the judicial process. The Court explained that “[a]dvocates are restrained not only by their professional obligations but by the... ...and...
- bill pertaining to specific individuals and circumstances. More generally, Congress may waive immunity by a public law and in important instances Congress has done so. Congress has in fact established a system of enterprise liability, wherein the principle, the federal government, assumes liability for the wrongful acts of its officials (with the significant exception of constitutional torts). These waivers include the Federal Torts Claims Act and the Tucker Act (largely for contract claims). Another significant waiver, which does include money damages proper but does include equitable and non-compensatory transfers of money, is that of Sec. 702 of the Administrative Procedure Act. This latter waiver (for declaratory and injunctive relief and equitable relief in general) is discussed at Sec. 12.1.
- was in process, the broker filed an action in federal court for damages, based on alleged due process violations, against several department officials. These officials, the plaintiff claimed, had initiated the process against him in retaliation for his criticism of the Department’s Commodities Exchange Authority. The officials whom he sued included the Secretary of Agriculture, the hearing officer and the judicial officer (who had presided over the hearing and departmental appeal of the hearing), the prosecuting agency attorney, and various other agency attorneys.
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Chapter 17: Citizens’ Access to Governmentally Held Information Part 2 149 results (showing 5 best matches)
- Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 615–16 (D.C.Cir.1976) (absent exceptional urgency on part of requester, agency deemed to be complying with FOIA, notwithstanding passage of the statutory deadline, if it is exercising “due diligence” while processing requests in the order in which they are received); Spannaus v. U.S. Department of Justice, 824 F.2d 52, 58 (D.C.Cir.1987) (statute of limitations started to run when the agency failed to comply with the FOIA request within ten working days, and not when all administrative appeals were completed).
- Administrative Alternatives and the Federal Freedom of Information Act
- Pub.L. No. 79–404, § 3, 60 Stat. 238 (1946). The Republican Policy Committee noted in 1966 that “requirements for disclosure in the present law [APA § 3] are so hedged with restrictions that it has been cited as the statutory authority for 24 separate classifications devised by Federal agencies to keep administrative information from public view.” 112 Cong.Rec. 10,950 (1966) (statement of Rep. Rhodes).
- The general rule under FOIA is that administrative remedies must be exhausted prior to judicial review.
- Subcomm. on Administrative Practice and Procedure of the Sen. Comm. on the Judiciary
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Chapter 10: Rules and Adjudications 9 results (showing 5 best matches)
- Consistency is also expected in agency adjudications and here it can be diminished in a couple of ways. One way is retroactivity (by avoiding it) and the other is not treating different parties differently for the same conduct. In these circumstances, consistency may be a due process requirement (as in referred to ). More likely, the measure is the Administrative Procedure Act as it prohibits “arbitrary” and “capricious” agency action. The arbitrary and capricious standard is presented and an index of retroactively is provided by Judge Friendly in ...no position one way or the other there’s no retroactivity. More “obnoxious” is the case where “an agency alters an established rule defining permissible conduct which has generally been recognized and relied on throughout the industries that it regulates.” The “judicial hackles still raise more,” Friendly added, when a “financial penalty is assessed for action that might well have avoided if the agencies changed disposition had been...
- Holding an agency to its rules does not mean that an agency cannot change its position. But that change should be consistent with the rule of law. When an agency wishes to change a rule, it should do so prospectively, by a new rule for future conduct. In , the Commission “was bound to recognize the validity of the rule of conduct prescribed by it and not to repeal its own enactment with retroactive effect.” Still, The Commission could “repeal the order as it affected future action, and substitute a new rule of conduct as often as occasion might require, but this was obviously the limit of its power….” So sure, a rule can be changed for “future action” but action before that changed is unaffected. is today substratum for the publication and codification requirements of the Administrative Procedure Act. As we have discussed, under the Act an agency is required to codify and publish its rules in the Federal Register, be they legislative or interpretive rules, and “a person may not in...
- , Nader v. Bork, 366 F.Supp. 104 (D.D.C.1973). In this case, the Court held that the United States Attorney General’s dismissal of Archibald Cox, the Watergate Special Prosecutor, was illegal because it violated regulations previously issued by the Attorney General. Without the regulations, the Attorney General “would have had the authority to fire Mr. Cox at any time and for any reason” However, “he had chosen to limit his own authority in this regard by promulgating the Watergate Special Prosecutor regulation” and “it is settled beyond dispute that under such circumstances an agency regulation has the force and effect of law and is binding upon the body that issues it.”
- , provides an example of the reasoned decision requirement as it is used to assure consistent and Columbia, in view of the Commission’s “indifferen[ce] to the rule of law,” overturned the Commission’s action respecting Greyhound.
- The norm of consistency in agency action also has a quite specific application, to a person with whom an agency has already dealt with and did so on a particular basis. In terms of consistency, applications of this sort are subject to two different doctrines, res judicata and promissory estoppel. Res judicata pertains to adjudication, to whether an agency that has acted against a person is thereafter bound by that adjudication. Estoppel involves the extent to which an agency is bound by promises made by its officials to a person. Both, res judicata and promissory estoppel, are covered in the next chapter.
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Index 172 results (showing 5 best matches)
Title Page 3 results
Part 1: Legislative Power in Agencies 2 results
- What these “rules” about delegations are, as best can be said, is discussed in Chapter 1. Within the agency itself, properly delegated legislative power is subject to procedural controls. These controls are generally the rulemaking requirements of federal and state administrative procedure acts and are the subject of Chapters 2 and 3.
- Delegations of legislative power from representative assemblies to administrative agencies are a large part of modern American government. These delegations take lawmaking out of representative government and into a zone of government by professional assumed to act according to disinterested and scientific judgments of good social policy. Otherwise, because administrative lawmaking is not subject to the same structural constraints—for instance the consensus of a bicameral legislature—as is Congress, a transfer of legislative power to agencies makes possible a greater range and volume of lawmaking than if such power stayed in Congress. In this way, delegations of legislative power are, as Professor Jaffe said, the “dynamo of the modern social services state.”
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Part 5: Information 2 results
- Part 5 examines the law that has developed to deal with these and other important information-related issues. To this end, Chapters 17 and 18 focus on the Freedom of Information Act and the Privacy Act. Chapter 19 deals with the Government in the Sunshine Act and Chapter 20 explores the legal issues that arise as the government seeks to acquire information from its citizens. These chapters essentially focus on four broad questions: (1) What rights do we as citizens have to information collected and retained by various governmental agencies? (2) What right does the government have to obtain information from its citizens? (3) How open to the public must governmental decisionmaking processes be? In addition, (4) to what extent does the use of technology by the private sector, enabling it to buy and sell information involving individuals, raise new privacy concerns?
- Agencies need information to carry out their regulatory goals. They often obtain it from those they regulate. Some information is submitted voluntarily by regulated entities seeking governmental approvals of one sort or another. Other information may be obtained through the use of agency subpoenas in the context, for example, of agency enforcement proceedings. Still other kinds of information may result from statutorily mandated reporting requirements. The amount of information that the government can and does collect is vast. Particularly in the computerized age in which we live, privacy concerns now are even more serious. Moreover, there is the persistent question of whether information collected by one governmental agency for one purpose can then be transferred to another agency for a very different regulatory purpose. In addition, there is the concern that without citizen access to the information government has obtained, as well as openness in its decisionmaking processes, we...
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Part 4: Control of Agency Discretion 2 results
- Part 1, 2 and 3 of this book have examined statutory and constitutional issues that arise when agencies exercise their adjudicatory, rulemaking, and informal powers. The processes that agencies use to exercise these powers, of necessity, limit an agency’s discretion. But the three branches of government—the Legislature, Executive, and Judiciary—also may seek to control or at least influence agency discretion more directly. There are a variety of political and legal controls that the legislative and executive branches of government can employ. These, as we shall see, can range from executive use of the appointment power to legislative control over agency budgets. Moreover, judicial review of both the substance and the processes of agency decision making represents another important source of control.
- Chapters 12–16 explore various ways agency discretion is influenced and controlled from outside the agency. Chapters 12–14 focus on judicial review. Chapters 15 and 16 examine various legislative and executive devices to influence agency discretion and the legal issues that arise. Since many of these approaches to agency control are political in nature, they usually are not susceptible to judicial review.
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Advisory Board 10 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law and Dean Emeritus,
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Yale Law School
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Copyright Page 3 results
- The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
- is a trademark registered in the U.S. Patent and Trademark Office.
- West, West Academic Publishing, and West Academic are trademarks of West Publishing Corporation, used under license.
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- Publication Date: July 1st, 2014
- ISBN: 9780314279415
- Subject: Administrative Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This treatise sets forth a comprehensive analysis of administrative law in the United States. Administrative law continues to evolve in interesting ways in all of its various dimensions. The authors address the new developments in the law of standing, congressional attempts to make agencies more accountable, and the continuing evolution of Chevron deference, among other issues. The fundamental purposes of this book are to assess and explain fundamental doctrines of administrative law, placing some of the most important aspects of those doctrines in a historical context, and setting forth the current state of the law. The book is intended to serve practitioners, scholars and students of administrative law.
