Gellhorn and Byse's Administrative Law

, by Strauss, Peter L.; Rakoff, Todd; Gellhorn, Walter

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ISBN: 9781566622844 | 1566622840
Cover: Hardcover
Copyright: 8/1/1995

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Supplemental Materials

Preface

iii

Acknowledgements

Table of Cases

xli

Table of Text and Periodical Citations

lxiii

Table of Statutes

lxxvii

An Introduction to Administrative Law

(50)

The Development of an Administrative State

(21)

Shaping the Institutions of Government---Executive and Independent Agencies

(6)

A First Look at Agency Functioning

(7)

Executive Decision

(2)

Rulemaking

(3)

Adjudication

(1)

Agencies in the Web of Government

(4)

The Constitutional Framework for Administration

(175)

Constitutional Limits on the Powers Agencies Can Be Given?

(71)

Delegation of the Authority to Make Rules of Conduct

(45)

Delegation of Enforcement Authority

112

(4)

Delegation of the Authority to Resolve Disputes

116

(22)

The Place of Agencies in Government

138

(88)

Issues of Constitutional Structure

138

(8)

Congressional Self-Aggrandizement

146

(25)

Beyond the President's Reach? Encroachment

171

(20)

Agencies in the Web of Government

191

(4)

Informal Legislative Oversight

195

(12)

The Inspector General---A Bureaucratic Oversight Institution

207

(8)

Presidential Supervision of Rulemaking

215

(11)

The Exercise of Administrative Power: Rulemaking and Adjudication

226

(284)

The Fundamental Procedural Catagories of Administrative Action

226

(30)

The Constitution

226

(12)

The Fundamental Statute

238

(18)

The Procedural Categories in Action

256

(161)

Formal Adjudication as an Administrative Process

256

(35)

Informal Rulemaking as a Sui Generis Administrative Procedure

291

(48)

The Possible Requirement of More Formal Rulemaking Procedures

339

(22)

The Permissibility of Less Formal Adjudicatory Procedures

361

(23)

The Permissibility of Yet-More-Informal Rulemaking

384

(16)

Regulatory Alternative Dispute Resolution

400

(17)

Agency Discretion in Choosing Between Rulemaking and Adjudication

417

(47)

The Extent, and Implications, of the Power to Choose Policymaking Mode

417

(19)

Time Frame: Issues of Retroactivity and Prospectivity

436

(17)

The Impact of Statutory Rights to an Individualized Hearing

453

(11)

The Role of Private Parties in Shaping Administrative Proceedings

464

(46)

Scope of Review of Administrative Action

510

(194)

Framing the Discussison

511

(9)

What the APA Provides

511

(1)

Concerns About the Judicial Partner

512

(5)

Conclusion: What is Our Task?

517

(3)

Judicial Review of Agency Factual Determinations

520

(34)

Judicial Review of Agency Factual Determinations Beyond the Facts

554

(98)

Historical Building-Block Cases

555

(16)

The Present-Day Framework

571

(49)

The Notoriety of Chevron

620

(1)

The Meaning of Chevron

621

(3)

The Wisdom of Chevron

624

(5)

The Implications of Chevron

629

(7)

A Final Thought on Chevron

636

(16)

``Rooms in the Mansion of the Law'': The Government's Obligations With Respect to Consistency, Estoppel, Preclusion & Acquiescence in Judicial Rulings

652

(35)

The Obligation to be Consistent

652

(8)

Responsibility for Inducing Detrimental Reliance

660

(6)

The Obligation to Abide by Prior Judicial Determinations: Preclusion and ``Nonacquiescence''

666

(21)

Enforcement & Sanctions

687

(11)

Conclusion

698

(6)

The Constitutional Requirement of an Opportunity to be Heard

704

(132)

Some Old Learning

705

(17)

The Explosion

722

(17)

The New Learning

739

(97)

Agency Acquisition of Information

836

(73)

Physical Inspections

843

(26)

Acquiring Documents

869

(40)

Required Forms and Reports

871

(6)

Required Records and The Fifth Amendment

877

(15)

Compulsory Process

892

(3)

May a Subpoena Issue Without ``Probable Cause'' to Believe It Will Produce Evidence of Wrongdoing?

895

(2)

What is the Judicial Role in Proceedings to Enforce Administrative Subpoenas?

897

(1)

The Subpoena Must Be Issued in Pursuit of an Authorized Objective

898

(1)

The Agency Must Not Be Acting in Bad Faith or for Purposes of Harassment

899

(1)

The Evidence Sought Must Be Germane to a Lawful Subject of Inquiry

900

(1)

The Demands Made Must Not Be Unduly Vague or Unreasonably Burdensome

901

(2)

The Administrative Command Must Not Ignore a Privilege to Remain Uncommunicative

903

(1)

The Administrative Command Must Be Issued in Proper Form

904

(1)

The Problem of Enforcing Administrative Subpoenas

904

(5)

Open Government and the Freedom of Information Act

909

(49)

Freedom of Information and Government Needs for Confidentiality

915

(12)

Freedom of Information and Private Needs for Confidentiality

927

(31)

Proprietary Information

927

(13)

Individual Privacy

940

(18)

The Processes of Agency Decision

958

(147)

On-the-Record Adjudication

958

(90)

A Dedicated Trier of Fact---the Administrative Law Judge

958

(1)

Institutional considerations

959

(13)

The Fitness of the Individual Hearing Officer

972

(6)

Agency as Decisionmaker---The Complications of Supervision

978

(1)

The Obligations of Notice and Hearing

979

(14)

The Impact of Multiple Roles

993

(11)

Obstacles to Integrity Arising From Contacts With Others

1004

(10)

General Counsel Gordon: Interested Agency Staff

1014

(9)

Secretary Lewis---Pressure From Other Parts of Government

1023

(12)

Albert Shanker---Relations With the Regulated and the Public

1035

(13)

Informal Rulemaking

1048

(46)

An Open-Minded Decisionmaker?

1058

(4)

The Contributions of Agency Staff

1062

(7)

Pressure From External Government Actors

1069

(25)

Agency Decision About Priorities

1094

(11)

Structural Management of Agency Business: Regulatory Agendas and the Selection of Risks for Regulation

1094

(1)

The Failed Promise of the Regulatory Agenda

1094

(1)

The Dilemmas of Risk Selection

1095

(5)

Case-by-case Management of Agency Enforcement Choices

1100

(5)

Judicial Control of Administrative Action: Doctrines That Define, and Allocate Access to, the Power of Judicial Review

1105

(332)

Methods of Obtaining Judicial Review

1106

(15)

Special Statutory Review

1107

(3)

General Statutory Review: The APA

1110

(3)

Nonstatutory Review

1113

(1)

Damages Actions

1114

(3)

The Prerogative Writs

1117

(2)

Injunctions And Declaratory Judgment Actions

1119

(1)

Interim Relief

1119

(2)

Standing to Invoke Judicial Review

1121

(64)

Overview: The Contemporary Doctrinal Framework

1122

(11)

What Sort of Interests Count?

1133

(1)

``Injury in Fact''

1133

(33)

``Arguably Within the Zone of Interests Protected or Regulated by the Law Invoked''

1166

(8)

The Problem of Causation: The Requirements of Traceability and Redressability

1174

(11)

Reviewability: Agency Actions Subject to Judicial Scrutiny

1185

(40)

``Statutes Preclude Judicial Review''

1192

(1)

Implied Preclusion

1192

(12)

Express Preclusion

1204

(5)

``Committed to Agency Discretion by Law''

1209

(16)

The Timing of Judicial Intervention

1225

(35)

Actions for Damages as a Form of Review

1260

(46)

Damages Actions Against Government Officials

1261

(19)

Damages Actions Against Government Entities

1280

(1)

The Federal Tort Claim Act

1280

(12)

The Tucker Act

1292

(1)

Section 1983

1293

(13)

APPENDICES

A. Federal Texts

1306

(76)

B. Uniform Law Commissioners' Revised Model State Administrative Procedure Act (1981)

1382

(55)

Index

1437

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Gellhorn and Byse's Administrative Law

Table of Contents

Supplemental Materials