Admin Law Outline
1. Enabling Statute—What was Congress thinking?
2. Constitutional Questions
3. Is informal rulemaking (quasi-legislative) or formal rulemaking (quasi-adjudicative) appropriate? 4. Is there sufficient notice?
The red highlighted material will not be covered on the exam although it is important information for understanding Admin. law. 3 ½ hrs. to complete exam.
I. The Origin and Mandate of Administrative Agencies
1. Regulate personal behavior of individuals and businesses; licenses; etc. 2. Pursuit of social policy (strategic)
a. Determine social policy
b. Includes impact and cost/benefit analysis
3. Pursuit of efficiency (tactical)
a. Once we agree on a social policy, how do we execute efficiently b. Also includes impact and cost/benefit analysis
Theories of Origin
1. Public Interest Theory—Idealist—Regulation is a result of a process that identifies, filters, and defines public/objective values and acts towards those ends. a. Natural Monopoly (like utilities)
o Some industries’ economics of scale are sufficiently great that one producer can satisfy the entire market and demand cheaper prices than others. o Regulation controls excessively high price and wasteful competition. b. Public Goods (public television)
• Justify direct govt provision of services.
• Market will under-produce certain goods or services whose enjoyment cannot easily be restricted to those who pay for them. c. External Effects (air and water pollution, healthy, safety and environmental risk) • Public bads will be overproduce and we need to regulate. d. Asymmetric Information
• Consumers find it too costly to acquire or evaluate info about quality of goods or services in marketplace. • Govt should prohibit outright certain unfair or unethical business practices.
2. Public Choice Theory—Cynic—Regulation is a result of a market-like exchanges that produces compromises between private/subjective values and ends. Focuses on the way in which individual preference is aggregated and expressed through public decisionmaking processes. a. Unnatural Monopolies
• Conspiracy between state or federal govt and the dominant business corporation. b . Public Goods
• Private good masquerading as public goods.
• E.g. t.v. is not propagation of culture; it is a highbrow entertainment for the affluent few. c. Self-serving external effects
• Pollution controls protect Eastern coal producers from competition. Cost more to clean dirtier Eastern coal than cleaner Western coal produces. Levels the playing field and costs. d. Asymmetric Info
• Source of political advantage enjoyed by particular groups with specialized training or knowledge 3. OSHA Hypo: Hazard Communication with Employees: Material Safety Data Sheet—Janitor at IUPUI cleans with an unlabeled bottle of solvent. Why do we need an agency to impose information requirement on employers/employers when the private parties are best able to minimize risk? a. Public Interest Arguments
• External effects—public bads of accident or faulty materials or poor design. Tort lawyers cannot regulate it b/c the employee is still hurt no matter what kind of compensation they win. The unions can’t bargain for standards b/c employer has unfair bargaining power. • Info asymmetry—Janitor would not be in a position to know what the solvent is? How to protect oneself from spills, fumes? What are the risks of different levels of protection? b. Public Choice Arguments
• External effects—cheaper to use safety regulations that are sufficient than being sued in court. Approved baseline. • Info asymmetry—Those with more info would choose a certain level of...