Principles of Administrative Law
Author:
Werhan, Keith
Edition:
3rd
Copyright Date:
2019
18 chapters
have results for Administrative Law and Process
Chapter 3. Due Process in the Administrative State 123 195 results (showing 5 best matches)
- The role of procedural due process in administrative law is not limited to the constitutional rights that it affords to individuals, however. The time-honored values served by due process—such as, the fairness of government action and the rule of law—pervade administrative law. As the remainder of this book manifests, due process values have deeply influenced Congress and the courts in their development and enforcement of the maze of sub-constitutional rules that govern the administrative process.
- The ancient guarantee that government officials may deprive individuals of their liberty or property only through due process of law occupies an important doctrinal position in administrative law. But as this chapter has shown, the procedural rights that the due process clauses provide to individuals are importantly limited as well. Procedural due process applies only to administrative adjudications, and then, only when an individual’s property interests or liberty interests are at risk of deprivation. And even when procedural due process applies, it often requires only informal administrative decision-making processes. In some instances, judicial remedies made available to individuals after an initial deprivation of a protected interest satisfy the procedural due process requirement.
- The Fifth and Fourteenth Amendments to the United States Constitution prohibit the federal government and the states, respectively, from depriving anyone of “life, liberty, or property, without due process of law.” In each amendment, the phrase “due process of law” has both a substantive and a procedural meaning. “Substantive due process,” as a general matter, prohibits the government from depriving individuals of their interests in liberty or property unless the government’s action is rationally related to a legitimate public purpose. governmental deprivations be rational and legitimate is easily met, and accordingly, substantive due process review is not a significant component of administrative law. Its principal service has been to provide a background principle underlying the more robust authority of reviewing courts under section 706(2)(A) of the Administrative Procedure Act to “hold unlawful and set aside agency action” that is “arbitrary, capricious, an abuse of discretion,...
- The primary advantage of the entitlement approach over the right-privilege distinction was its flexibility and capacity for growth. By opening the meaning of “property” beyond the limits of the traditional common law, the Court was able to accommodate the “new property” that the right-privilege distinction had frozen out. was emphatic in its rejection of the traditional gatekeeper to procedural due process protections: “the Court has fully and finally rejected the wooden distinction between ‘rights’ and ‘privileges’ that once seemed to govern the applicability of procedural due process rights.” represents a strategic judicial retreat from the boldness of the due process vision of the administrative state on display in , the justices stopped well short of a full retreat back to the traditional common law.
- “Procedural due process,” on the other hand, has always been a central component of American administrative law. Indeed, this guarantee has been called the oldest American civil right. The phrase “due process of law” first appeared in England in 1354, when Parliament adopted a statute providing, “[N]o man of what Estate or Condition that he be, shall be put out of land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.” The influential seventeenth-century jurist Sir Edward Coke tied the meaning of “due process of law” to Magna Carta (1215), which had obligated King John to proceed “by the law of the land” when depriving English freemen of their life, liberty, or property.
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Preface to the First Edition v 7 results (showing 5 best matches)
- This book is written with the purpose of assisting law students and lawyers in overcoming these difficulties in the study of administrative law. Its goal is to organize and to develop the core components of administrative law in a way that renders this legal system both comprehensible and usable. With that goal in mind, I have discussed throughout the book (1) the historical development of administrative law and the administrative state; (2) the evolution of the essential principles of administrative law, with an emphasis, of course, on current doctrine; and (3) the contemporary controversies in administrative law. I also have included in each chapter diagrams that provide a visual organization of administrative law and the administrative process.
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Chapter 1. An Introduction to the Study of Administrative Law 1 139 results (showing 5 best matches)
- Administrative law also has little to say about the substance of agency action. Although “administrative law” might aptly describe the considerable amount of law that administrative agencies produce on a daily basis, the conventional understanding of administrative law as a category of jurisprudence relates to agencies make their decisions and courts review those decisions. It does not prescribe the content of agency decisions as such. Administrative law is process-oriented. It focuses on the power of agencies to act with the force of law, and the procedures they must follow when taking such actions. The substantive laws that agencies make, as well as the substantive laws they enforce, provide the subject matter of such kindred subjects as labor law, environmental law, communications law, and so forth.
- Administrative law, as its name suggests, is the law of government administration. It is the system of general legal principles that lawmakers and judges have devised over the years to legitimate, as well as to control, the actions of administrative agencies. Administrative law prescribes the ground rules for creating administrative agencies; it defines the power of those agencies; it structures the processes of agency decision-making; and it shapes the rights of individuals to participate in those processes as well as to challenge agency decisions in court. The Administrative Procedure Act of 1946 (“APA”) provides the basic framework for federal administrative law and functions as something of a sub-constitution for federal agencies.
- Administrative law is limited by several important boundaries. The first and most fundamental limitation is that administrative law by and large applies only to the actions of administrative agencies that alter the legal rights and obligations of individuals. Because of this limitation, there are many things that agencies do that clearly are administrative in nature but that are not directly controlled by administrative law. Indeed, it is fair to say that agency activities do not directly affect individual rights and therefore are not subject to administrative law. For example, agency officials, as part of the administrative routine, determine their priorities, establish enforcement strategies, form working groups and task forces, analyze and process information, recommend budgets, provide congressional testimony, give speeches, meet with members of interest groups, and engage in myriad other activities that are necessary to fulfill their responsibilities, but that do not have a...
- This introductory chapter sets the table for the principles of administrative law that follow. It begins by offering basic answers to several preliminary questions one might bring to the study of administrative law—such as, what is administrative law? What are administrative agencies? And what motivates agency action? The chapter then briefly introduces the “traditional model” of administrative law, which provides a helpful point of departure for analyzing administrative law problems. The chapter concludes with a history of the administrative state in the United States that, although necessarily brief and somewhat simplified, is more extensive than one often finds in administrative law texts. Some sense of history is necessary to an understanding of administrative law because much of this jurisprudence has developed over a long period of time and on the run, in a continuing effort to keep up with the evolution of the administrative state.
- Through the processes of rulemaking and adjudication, administrative agencies carry out functions that run the full gamut of government authority. They regulate the conduct of individuals and of the entities individuals create, license individual activity, dispense benefits, set rates, let contracts, collect taxes and fees, maintain and control the use of federal property, and on and on. When agencies take such actions with binding effect, that is, with the force of law, they must comply with administrative law.
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Chapter 2. Administrative Agencies in American Constitutional Government 39 293 results (showing 5 best matches)
- The traditional model of administrative law thus helps to legitimate agency authority under the Constitution by aligning the administrative process with the process of government decision-making prescribed by the separation of powers: Congress enacts a law authorizing executive action that is subject to judicial review. But this alignment, as is often the case with the American Constitution, is a double-edged sword. While it provides constitutional legitimacy for the exercise of administrative power, it also imposes constitutional limits on the role that each government actor—Congress, the president, the courts, and the agencies themselves—can play in the administrative process.
- Administrative law provides the legal framework within which government officials affect individual rights. So does the Constitution. It should not be surprising, then, that administrative law contains a substantial constitutional component. Two constitutional doctrines play an especially significant role in administrative law—procedural due process and separation of powers. The former doctrine is considered in Chapter 3. Separation of powers is the subject of this chapter.
- Congress plays an instrumental role in the administrative process, but the separation of powers restricts its participation to activities that are consistent with its constitutional status as national lawmaker. Legislators engage in the administrative process in two basic ways. First, they launch the administrative process by creating agencies, by defining the scope of agency authority, and by funding agency activities. Congress performs each of these tasks by enacting statutes. Congress also provides an oversight function, with the aim of ensuring that agencies exercise their authority and spend their money in alignment with evolving legislative policy goals.
- As demonstrated by the Congressional Review Act, discussed in the previous section, Congress can pass, and often has passed, statutes that impose generally applicable requirements on agency decision-making. In fact, much of administrative law is derived from just such an enactment, the Administrative Procedure Act. Another prominent example of a generally applicable statute that has had a wide-ranging effect on the administrative process is the National Environmental Policy Act of 1969 (“NEPA”),
- The justices acknowledged that state common law claims reside at the “core” of the private rights “normally reserved to Article III courts.” But that acknowledgement launched rather than concluded the Court’s inquiry. In upholding the Commission’s jurisdiction over state-law counterclaims in reparations proceedings, the justices took a decidedly functional approach, “weigh[ing] a number of factors, . . . with an eye to the practical effect that the congressional action will have on the constitutionally assigned role of the federal judiciary.” Several features of the administrative scheme convinced the Court that “the magnitude of any intrusion on the Judicial Branch” by the Commission’s jurisdiction over state-law counterclaims could “only be termed ...were permissive rather than mandatory, and thus that the brokers were free to file their claims against a customer in court rather than in a CFTC reparations proceeding. The parties therefore had waived any right to an Article...
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Chapter 4. The Administrative Procedure Act and the Procedural Forms of Agency Action 175 111 results (showing 5 best matches)
- Constitutional doctrine has an important but limited role in administrative law. While the original Constitution provided rules guiding the creation of administrative agencies and the exercise of administrative power, the framers to a considerable degree left the decisions on these questions for the political processes they had set in motion (see Chapter 2). Similarly, the guarantee of procedural due process in the amended Constitution provided important, but limited, protections of individual rights that government administration may put at risk (see Chapter 3).
- The absence of a decision-making process for informal adjudication is a glaring omission of the APA. But this gap was intentional. Congress well understood that agencies conduct “the great mass of administrative routine” through informal adjudication. By one estimate, between 90 and 95 percent of administrative adjudications are informal rather than formal. Paradoxically, it might be the prevalence of informal adjudication throughout the administrative state that best explains why Congress concluded that it was undesirable to codify a default decision-making process. Informal adjudication is so ubiquitous and so varied that legislators may have felt that they could not design a single, across-the-board procedural model without compromising the ability of at least some agencies to administer at least some of their programs.
- The failure of the APA to specify a set of procedures for informal adjudications does not mean that agencies are freed from all procedural constraints when they make such decisions. The APA provides a few procedural rights that apply to administrative action generally. For example, section 555(b) entitles parties “to appear in person or by or with counsel or other duly qualified representative in [any] agency proceeding.” And section 555(e) obligates agencies to give “[p]rompt notice . . . of the denial,” together with “a brief statement of the grounds for denial,” “of a written application, petition, or other request of an interested person made in connection with any agency proceeding.” Moreover, if procedural due process is applicable, the agency must provide individuals reasonable notice and opportunity for a fair hearing (see Chapter 3). And as we shall see, agencies as a practical matter must follow a decision-making process that generates an administrative record and a
- emphasized the importance of remaining faithful to the text of the Administrative Procedure Act. Section 554(a) states the same two-part requirement that is found in section 553(c): the enabling act must instruct an agency (1) to provide “opportunity for an agency hearing” and (2) to make its decision “on the record.” As was true in the rulemaking context, a simple statutory hearing requirement regarding agency adjudication satisfies the first, but not the second, of these requirements. It is certainly possible that the justices would stick as closely to the text of section 554(a) as they did to section 553(c) in , requiring enabling acts authorizing administrative adjudication to satisfy both requirements of section 554(a), or their equivalent, before compelling an agency to follow the specific demands of sections 556 and 557. And this may be what the drafters of the APA had intended. The Administrative Procedure Act makes informal proceedings the default process for both rulemaking
- The Court conceded that administrative rulemaking was the preferred method for “filling in the interstices” of an enabling act. But the justices refused to impose a “rigid requirement” on agencies to flesh out the statutory standards they administer by rulemaking rather than by adjudication. Such a decree, the justices feared, “would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise” when agencies implement statutory programs. “[T]he choice made between proceeding by general rule or by individual, ad hoc litigation,” the Court concluded in , “is one that lies primarily in the informed discretion of the administrative agency.”
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Chapter 6. Informal Rulemaking Under the Administrative Procedure Act 241 223 results (showing 5 best matches)
- The spare provisions of section 553 of the Administrative Procedure Act establishing a notice-and-comment process for informal rulemaking often are cited as one of the drafters’ most significant innovations. Federal agencies have issued rules with the force of law since the Founding, and by the time Congress enacted the APA in 1946, rulemaking was an established feature of the administrative landscape. Yet administrative rulemaking suffered from something of an identity crisis in 1946. Agencies often used formal adjudicatory proceedings to establish administrative policy. And when setting rates, a common form of administrative rulemaking at the time, agencies, as in formal adjudication, typically based their decisions solely on evidence admitted at a trial-type evidentiary hearing. On those occasions when agencies issued rules other than rates, Congress often left administrators free to follow any process of their choosing. The rulemaking processes agencies chose ..., and...
- In contrast to the APA’s procedures for formal agency proceedings, which adapt a judicial model of decision-making to the administrative process, the informal notice-and-comment procedures of section 553 prescribe a good-government legislative model for agency rulemaking. Section 553 represents a conception of “legislative due process” that attempts (1) to enhance the quality of administrative regulation (by increasing the flow of information between the public to the agency) even as it promises (2) to ensure the fairness of administrative regulation (by allowing interested persons to protect their interests by participating in the rulemaking process). In the end, the hope is that the written conversation between the regulators and the regulated structured by section 553 will promote “reasoned decision-making” by agencies when formulating rules with the force of law.
- Section 553 of the APA provided a platform for the emergence of administrative rulemaking as a dominant regulatory tool by both legitimizing and regularizing agency rulemaking processes. In section 553, Congress finally created a uniform, baseline procedure governing the issuance of agency rules with the force of law. The heart of the informal rulemaking process of section 553 is a written exchange between the agency and interested members of the public. The agency publishes a “notice of proposed rule making” and invites written comments from the public (APA § 553(b)–(c)). The agency re-evaluates its proposal in light of the comments it receives and then publishes the final rule, together with “a concise general statement of [its] basis and purpose” (APA § 553(c)–(d)). That’s it. (See Figure 6-1.)
- Congress’s removal of procedural constraints on the issuance of policy statements and interpretive rules reflects not only the nonlegislative character of these instruments, but also the desirability of their use in administrative governance. Policy statements and interpretive rules serve two basic functions. They promote administrative consistency by instructing agency personnel on how to apply broad or ambiguous laws. They also enhance administrative transparency by notifying interested members of the public of administrative policies and legal interpretations before the agency acts on them.
- The Administrative Procedure Act exempts procedural rules (or in the language of section 553(b)(A), “rules of agency organization, procedure, or practice”) from the requirements of notice and comment in order to provide agencies flexibility in “organizing their internal operations.” This exemption generally is available for administrative rules governing the conduct of an agency’s proceedings, as well for rules allocating authority and assigning duties within an agency. The procedural rules that govern agency proceedings, unlike the other section 553(b)(A) exemptions, often carry the force of law. When they do, procedural rules, like legislative rules, are binding on the agency as well as on members of the public who invoke the agency’s decision-making processes. But unlike legislative rules requiring notice and comment, procedural rules do not alter the substantive rights or interests held by members of the public. Rather, they control how individuals assert their rights and...
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Chapter 5. Formal Adjudication Under the Administrative Procedure Act 209 135 results (showing 5 best matches)
- The combination of law-enforcement and law-adjudication functions in administrative agencies raises legitimate concerns about the inherent fairness of agency adjudication. The “basic requirement of due process” that individuals be afforded a “fair trial in a fair tribunal” applies to administrative adjudication as well as to judicial trials. Yet in the typical administrative enforcement proceeding, the same agency investigates whether some person has engaged in unlawful conduct; prosecutes the person for that conduct; and ultimately decides whether the person’s conduct was unlawful. Such a combination of functions in a trial court would be unthinkable in the American judicial tradition. It nevertheless thrives as an inherent feature of contemporary administrative government.
- The creation of administrative law judges as “a special class of semi-independent subordinate hearing officers” was a central reform of the Administrative Procedure Act. Impartial fact-finding helps to ensure the legitimacy of the formal adjudicatory process.
- Understanding formal adjudication as an administrative trial highlights the persistent tension that arises when agencies with a policy mission assume “the duties of prosecutor and judge.” Agencies with law-enforcement responsibility often launch a proceeding by investigating possible violations of their enabling acts or their rules. When an agency finds a probable violation, it issues and prosecutes a complaint against the party in question. These agencies close the power loop by deciding whether the party has violated the act or rule at issue. This combination of law-enforcement and law-adjudication functions in one government institution has raised lingering concerns over whether the administrative process is capable of providing individuals a fair hearing.
- As we have seen throughout this chapter, the Administrative Procedure Act prescribes a process for formal adjudication that promises a considerable degree of fairness and impartiality. The Act separates law-enforcement personnel from administrative adjudicators, at least in formal adjudication. It thus should not be surprising that the Supreme Court has resisted claims that “the combination of investigative and adjudicative functions creates an unconstitutional risk of bias in administrative adjudication.” , “must overcome a presumption of honesty and integrity in those serving as adjudicators.” The justices promised that courts would be “alert to the possibilities of bias that may lurk in the way particular procedures actually work in practice,” but made clear that a complaining party must present “specific” evidence to establish “an unacceptable risk of bias” in an agency’s adjudicatory process.
- Although this combination of functions is in tension with American constitutional norms of separation of powers and procedural due process, it has become accepted as a necessity in the administrative state. After all, Congress’s fundamental motivation in creating agencies is to obtain the efficiency and effectiveness that result from concentrating authority in one institution to pursue specified undertakings. The Supreme Court has accepted the combination of government functions in administrative agencies as consistent with separation of powers (see § 2.2). And in the Court held that entrusting investigative and adjudicatory functions to the same administrative official, without more, does not violate an individual’s procedural due process right to an unbiased decision-maker. The justices in acknowledged, however, that such power combinations were hardly trouble-free, and thus that they were a proper subject of legislative attention. ...to balance the benefits of administrative...
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Chapter 8. The Nature and Scope of Substantive Judicial Review 347 279 results (showing 5 best matches)
- ’s tentativeness regarding the criteria for its new force-of-law threshold has left generally applies as a matter of course to administrative interpretations in notice-and-comment rulemaking and formal adjudication. had seemed to make equally clear that reviewing courts should determine on an ad hoc basis whether administrative interpretations in informal adjudications deserve to administrative interpretations in informal adjudications. more puzzling is the force-of-law status of legally binding rules that agencies issue without notice and comment, such as procedural rules and interim rules (see § 6.5(c)–(d)). Unlike the tariff-classification rulings in , these rules typically are issued at an agency’s headquarters and generally bind the agency as well as the public. But agencies may issue these rules without any process fostering the kind of “fairness and deliberation” the Court expected of administrative lawmaking.
- In the end, (1) the Customs Service’s highly informal administrative decision-making process seemed to combine with (2) the highly diffuse issuance of tariff-classification rulings and (3) the lack of precedential effect of those rulings to bring home to the deference. But the justices’ highly contextual approach to the force-of-law requirement in left unclear whether administrative action with some (but not all) of the attributes of tariff-classification rulings might qualify for deference. The justices also gave little guidance on how it would treat administrative interpretations in decision-making contexts that differed from notice-and-comment rulemaking and formal adjudication in ways other than those that had characterized the Customs rulings.
- Striking the proper balance of the judicial role in the administrative process has proven to be most difficult when courts engage in substantive review. Several characteristics of the American system of government administration contribute to this difficulty. First and foremost, judicial review of administrative action raises the same “countermajoritarian difficulty” that arises when courts review the constitutionality of legislative or presidential actions. Although administrative decision-makers are not elected, they are indirectly answerable to the public through their accountability to the president and Congress (see §§ 2.3–2.4). Federal judges, with their constitutional guarantees of life tenure and salary maintenance, are the least accountable decision-makers in the American system. This insularity creates institutional advantages for the courts, enabling them to avoid political pressure when ruling on the legality of controversial agency action. But the disconnect between the...
- , determining whether the enabling act or the administrative action at issue complies with the Constitution. Section 706(2)(B) of the Administrative Procedure Act provides that reviewing courts “shall . . . hold unlawful and set aside agency action . . . found to be . . . contrary to constitutional right, power, privilege, or immunity.” The constitutional requirements that arise most commonly in administrative litigation involve the separation of powers and procedural due process. Chapters 2 and 3 of this book examine those requirements.
- Federal agencies may assert the privileges that are available to any litigant, such as the attorney-client privilege and the attorney work-product privilege. Agencies enjoy several special governmental privileges as well. The governmental privilege that agencies invoke most frequently in administrative litigation is the deliberative process privilege. This privilege covers an agency’s “internal memoranda embodying the deliberative processes of the agency and its staff.” Examples of agency memoranda that may fall within the deliberative process privilege include staff recommendations, analyses, work product, and legal opinions. The deliberative process privilege does not protect statements of fact appearing in agency memoranda when the facts are necessary for judicial review and are not otherwise disclosed in the administrative record. A reviewing court also may require an agency to disclose internal memoranda otherwise subject to the deliberative process privilege when the agency...
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Chapter 7. The Availability and Timing of Judicial Review 303 157 results (showing 5 best matches)
- The interaction of common law traditions and statutory judicial review provisions created a vexing tangle of court proceedings, subjecting agencies to widely varying forms of judicial review, and at times to no judicial review at all. One of Congress’s central aims in adopting the Administrative Procedure Act in 1946 was to clarify and to unify the process of judicial review over agency action. Sections 701–705 of the APA, which are the subject of this chapter, govern the availability and process of judicial review. Section 706, which is the subject of Chapter 8, codifies the scope of judicial review.
- The final component of the traditional model of administrative law (see § 1.4) provides for judicial review of agency action (and sometimes inaction) to ensure its legality, and thus its legitimacy. This judicial role of testing the exercise of administrative power for its fidelity to law is crucial in a polity committed to the rule of law.
- American Bar Association Section of Administrative Law and Regulatory Practice, A Blackletter Statement of Federal Administrative Law
- Some form of judicial review has always been part of the administrative process in the United States. From the beginning, courts have checked the legality of administrative decisions before enforcing them in a civil or criminal proceeding. Early courts also drew on the common law remedies that America inherited from English legal practice to review official action. Individuals challenged actions by public officials that violated their common law rights by filing suits for damages against the officials personally. English common law also provided a network of prerogative writs—most prominently, the writs of mandamus and of habeas corpus—from which American judges might select in order to control the legality of ...writ of mandamus to review Secretary of State James Madison’s refusal to deliver a commission to serve as justice of the peace for the District of Columbia. When the common law provided no remedy, courts drew on their equitable powers, such as the power to issue...
- Agency Action Consummating the Administrative Decision-making Process.
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Table of Contents 48 results (showing 5 best matches)
- Due Process in the Administrative State123
- § 1.5A History of the American Administrative State and of American Administrative Law10
- § 1.1What Is Administrative Law?2
- (b)Separation-of-Functions Limitations on Administrative Law Judges in Formal Adjudicatory Proceedings213
- (a)The Hearing Officer: Administrative Law Judges220
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Summary of Contents 8 results (showing 5 best matches)
- Due Process in the Administrative State123
- The Administrative Procedure Act and the Procedural Forms of Agency Action175
- An Introduction to the Study of Administrative Law1
- Administrative Agencies in American Constitutional Government39
- Formal Adjudication Under the Administrative Procedure Act209
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Table of Cases 419 29 results (showing 5 best matches)
- Association of Administrative Law Judges, Inc. v. Colvin, 223
- Association of Administrative Law Judges, Inc. v. Heckler, 221
- Association of Data Processing Serv. Org. v. Board of Governors of Federal Reserve System, 360, 365
- Association of Data Processing Serv. Org. v. Camp, 26, 322
- Holder v. Humanitarian Law Project, 340
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Title Page 2 results
West Academic Publishing’s Law School Advisory Board 11 results (showing 5 best matches)
- Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law
- Professor of Law and Dean Emeritus
- Distinguished University Professor, Frank R. Strong Chair in LawMichael E. Moritz College of Law, The Ohio State University
- 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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Index 431 26 results (showing 5 best matches)
Copyright Page 1 result
- Publication Date: November 21st, 2018
- ISBN: 9781640201811
- Subject: Administrative Law
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This book provides an accessible, yet sophisticated treatment of the essential principles of administrative law. Topics covered include a history of the American administrative state; theories of agency behavior; separation of powers and procedural due process, as they are implicated by the administrative process; the procedural framework of the Administrative Procedure Act; formal adjudicatory procedure; informal rulemaking procedure; and the availability, timing, and scope of judicial review. The book includes charts and diagrams that assist the reader in visualizing the major elements of the administrative process.