Note: I am still in the process of updating this page for fall 2020. Until this notice is removed, do not rely on anything on this page.

Overview

Administrative law is the law of how agencies operate. Like civil procedure, federal courts, and the structure half of constitutional law, it’s sort of a “meta” course: it’s largely about mechanism, not substance. It’s about the law that constrains what agencies can do and how they behave, and about the law that governs how people, companies, and other private parties can interact with agencies.

Administrative law is difficult and complicated, but it’s also a fundamental piece of American law. As a lawyer, you will almost certain encounter administrative agencies throughout your career. At the federal level, agencies are responsible for almost everything the federal government does. For just a few of many examples, consider:

And so forth — for an alphabetical list of dozens and dozens of federal agencies, click here. States have their own agencies too, as do local governments; think about, for instance, zoning and planning boards. Most of the cases we read, then, will come from substantive areas we don’t really care about, for purposes of this course: financial regulation, health law, transportation law, Social Security disability benefits, &c.

What we will care about are the meta questions: What are the sources and scope of agency powers? What are the sources and scope of legislative, executive, and judicial authority in response to an agency? What limits are there on each of these powers? How does an agency exercise its power through adjudication or rulemaking? When an agency acts through adjudication or rulemaking, what are the legal requirements and limits of its authority? When does or should an agency use adjudication, and when is rulemaking the better option? What are the due-process rights of people and organizations affected by agency action? And what options are available if someone is unhappy with an agency’s actions?

There’s one more meta aspect to administrative law at the moment. Administrative agencies are an awkward fit with the structure of the Constitution; people sometimes say that agencies are the “fourth branch” of government, unmentioned in the Constitution’s text. So prevailing views about their powers and constitutional constraints have ebbed and flowed throughout U.S. history. And we are in the middle of what may be a transitional period, with courts and policy makers more skeptical of agency power in recent years. We will also, then, discuss the arguments for and against broad agency powers and protections and the potential effects of changes in the coming years.

Materials

The casebook is Hickman & Pierce, Federal Administrative Law (third edition 2020), ISBN 9781642422580. Because administrative law experiences frequent changes as the Supreme Court decides cases, unfortunately an earlier edition of the book will not work.

In addition to the casebook, I may post links to other readings and assignments on this site. I will not be using Canvas or a similar system.

Class meetings, office hours, and other resources

We will meet on Mondays and Wednesdays from 12:30 to 1:45 p.m. Because we are a large group and circumstances are quickly evolving in the wake of the Covid-19 pandemic, I am not yet sure whether we will be in a classroom or will be meeting remotely via Zoom. (See below for more on the accommodations we will make for the pandemic.)

Outside of class, I will be holding remote office hours via Zoom at a time to be determined. If you’d like to set up another time to talk, please email me at roger.ford@nulllaw.unh.edu. (Do remember, though, that this is a professional environment, which means your email should be professional in formatting and tone.) I’m happy to meet and help if there’s something from class that’s confusing or unclear, or to go over the material we covered in class, or talk about connections between our material and other classes or legal issues you’ve come across, or discuss career plans or other courses to take — whatever’s helpful for you.

If there is anything that is making it harder than it should be to perform well in this class or in law school generally — whether that’s an issue with your mental or physical health, challenges securing food or housing, relationships with other students or family members, anything — please get in touch with the Assistant Dean of Students or with me if you’re comfortable doing so. We can point you toward useful tools and resources and can do whatever we can to help.

Grading and collaboration policy

Course grades will be based on an optional take-home midterm exam and an open-source take-home final exam. Optional means just that: You may complete the exam or not, and if you do, I will factor it into your grade only if it helps you. In addition to the exams, I may adjust grades upward or downward by one step on the grading scale (for instance, from a B-plus to an A-minus or a B) for participation that is especially helpful or insightful, or for any students who are repeatedy unprepared or absent.

We are all here to learn about the law, and in general I am all for anything that helps further that goal. This means that you are free to consult whatever sources you wish in your work for this class and, except on the exams, you’re also free to collaborate with each other.

Attendance policy and Covid-19 pandemic accommodations

Administrative law is one of the hardest topics in law school, so it’s critical that you keep up with the material if you don’t want to fall behind. Having said that, the ongoing pandemic means that things will come up that are more important and urgent than class. So we will all have to be patient and flexible with each other — none of us signed up for this.

One thing we will have to be flexible about is having class in person versus remotely, via video. In-person class is clearly preferable for all involved: both teaching and learning are easier and more effective face-to-face. But the pandemic remains very dangerous, and we are a large group. So I will be holding class in person only once it is clear that it is safe to do so. And even once that point is reached, you are welcome to participate remotely if you feel safer doing so, or for any other reason.

In person or remote, though, it is still critical that you come to class prepared, having read and considered the assigned materials. I will call on students to ensure broad participation, but I hope that all of you will also volunteer responses, questions, and comments. I will be calling on small groups of students together, but it is still your responsibility to be ready to answer questions.

It’s okay if you have to miss an occasional class, but please let me know by 8:00 p.m. the night before class so I can avoid calling on you. Likewise, since I would rather you come to class unprepared than not come to class at all, if for any reason you won’t be prepared to discuss the assignment for a particular class, email me by 8:00 p.m. the night before and I won’t call on you, no questions asked. I will also be recording class and posting videos online in case you have to miss class.

Class discussion, diversity, and inclusion

In this class, I will use a mixture of lecture, group discussion, and the Socratic method. The last of these means that a significant chunk of our class time will consist of me calling on students to ask questions about the material. Some students find this intimidating — I was one of them when I was in law school — but I think it’s the best way to learn how to think like a lawyer. As Elizabeth Garrett explained in an influential essay in the journal The Green Bag, the method does a better job than others of developing the sort of critical-thinking skills that lawyers use every day:

Professors could lecture students about legal reasoning, but those who use the Socratic Method prefer to rely as much as possible on active learning. Just as a professor who immediately answers her students’ questions loses an opportunity to help them discover the answers on their own, the professor who dispenses legal principles in classroom soliloquies will reduce students’ opportunities to engage in independent critical thinking that could lead them to a deeper understanding of the material.

This learning process only works if the classroom is a welcoming and inclusive place that supports a diversity of thoughts, perspectives, and experiences, and honors your identities, including race, gender, class, sexuality, religion, ability, and so forth. I want you to feel comfortable in class, free to express your experiences and opinions — in a professional and respectful manner — and learn from the diverse experiences and opinions of your classmates. If anything is making you uncomfortable, inside or outside of class, please come and talk with me about it, and I will do anything I can to help so long as it’s consistent with the goal of learning. And if you use a name or set of pronouns that differ from those in UNH’s records, or if I mispronounce your name, please let me know.

In an ideal world, the law would similarly reflect the full, diverse array of thoughts, perspectives, and experiences. Law, though, is a field that is historically built on a small subset of privileged voices. We will make an effort to read materials from a wide array of authors and perspectives, but we can only do so much given the way that legal doctrines and ideas have developed. I am counting on each of you to help surface these biases and limitations as we make our way through the course.

A note on laptop use

There has been a lot of talk in law-professor circles in recent years about whether to let students use laptops in class. The point is somewhat moot in the era of Covid-19, but it still has some useful takeaways. So I want to lay out some of the points of discussion and explain my approach to this issue so we’re all on the same page.

There are good arguments on both sides. Proponents of banning laptops generally make two arguments: (1) that laptop use by one student can distract other nearby students; and (2) that laptops hurt students’ understanding of the material. The second point is worth unpacking. Most people can type more quickly than they can write by hand, so students using laptops can be tempted to just transcribe the class in their notes. If you can only handwrite so much, though, you have to think through the material and synthesize and summarize, which — similarly to the Socratic method — promotes understanding of the material. And there are academic studies backing up these arguments (see here, here, here, and here), though the conclusions one can draw from them are limited due to methodological issues and small effect sizes.

Opponents of banning laptops have arguments of their own: (1) that using technology effectively and responsibly is a key part of legal practice; (2) that laptop bans can disproportionately hurt, or stigmatize, students with disabilities; and (3) that laptop bans differently affect students with different learning styles. For instance, some students learn better from written material than from oral delivery; some learn better by synthesizing material after the fact, rather than in the moment. Laptops can be useful tools for these students. (There are also debates about pedagogy and paternalism versus libertarianism, but we can set those to the side.)

On balance, I find the arguments against banning laptops slightly more persuasive than the arguments in favor. So I allow their use in class, with two caveats. The first is that I encourage you to think about whether using a laptop actually helps you learn the material — whether you are one of those students for whom taking notes on a laptop will work better than by hand. The second is that that use must be limited to note taking and the like. Where laptop use unequivocally hurts understanding — for both yourself and surrounding students — is when it’s unrelated to class. So laptop use for social media, email, web browsing, chat, games, and the like is prohibited.

Schedule and assignments

Last updated July 27, 2020.

This syllabus is a living document, which means I will update it throughout the semester. The reading assignments are listed below, and I will fill in the list over the course of the semester. We will cover about one assignment per day.

(Readings to come.)