Updates

Room change: As of August 30, 2021, the classroom for in-person class meetings has been changed to room 229. (8/30/21)

Contents

Overview: What administrative law is all about

Administrative law is the law of how government agencies operate. Government agencies play a shockingly large role in law; as a lawyer, you will almost certain encounter administrative agencies throughout your career. This is true at the federal, state, and local levels. At the federal level, for instance, agencies are responsible for the details of almost everything the government does. For just a few of many examples, consider this highly incomplete list of federal agencies:

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.

Like civil procedure, federal courts, and the structure half of constitutional law, this is 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. 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. There’s no real way around this, and it can make administrative law a difficult and complicated subject to learn.

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 will 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 12:15 to 1:45 p.m. in Room 282 Room 229. Because we are a large group and circumstances are quickly evolving in the wake of the Covid-19 pandemic, we don’t know yet if we will make it through the entire semester in the classroom or if we will need at some point to meet remotely via Zoom. (See below for more on the accommodations we will make for the pandemic.)

Outside of class, I will be holding group office hours via Zoom at a time to be determined. I am also happy to meet individually or at another time if you’d like to talk; just email me at roger.ford@nulllaw.unh.edu to set up a time. (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 policies

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, in unusual circumstances 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 pandemic considerations

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. Covid-19 remains a dangerous and highly transmissible disease with unclear and dangerous-looking long-term effects. So we will all have to be patient and flexible with each other — none of us signed up for this.

We are beginning the semester in the classroom, though depending on how things go, we may need to pivot to partially or fully remote classes at some point. We are also beginning the semester with masks required, and I expect that to continue for most or all of the semester, though again it depends on the course of the pandemic. I plan to record class and post the videos, for anyone who has to miss a class or just wants a refresher on a difficult subject.

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 plan to begin the semester calling on students in pairs or small groups as I did during remote classes, though we will see how this goes in person; we may need to switch things up.

It’s okay if you have to miss 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. If you do need to miss class, watching the video counts as attending class as long as you complete the attendance form when you do so.

This should go without saying by now, but if you are feeling ill or experiencing any possible symptoms of Covid-19 or another respiratory illness, do not come to class. Stay home and watch the video once you feel well enough to focus. The UNH “Wildcat Community Pledge” calls on everyone “to wear a mask if they are not feeling well.” This is, frankly, batshit advice; if you are not feeling well, you should be isolating at home, not going out in public, with or without a mask. It is your responsibility to know the symptoms of Covid-19 and to keep others safe if you are experiencing symptoms or have been exposed to someone else who is, no exceptions.

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, and administrative law is among the clubbiest and most privileged areas of an already-clubby profession. So although we will make an effort to consider a wide array of issues and perspectives, we can only do so much given the way that administrative-law 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.

Class recordings

I will link to videos of class here over the course of the semester.

  1. August 25, 2021.
  2. August 30, 2021.
  3. September 1, 2021.
  4. September 8, 2021.
  5. September 13, 2021.
  6. September 15, 2021.
  7. September 20, 2021.
  8. September 22, 2021.

Reading assignments

Last updated September 10, 2021.

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 aim to cover about one assignment per day, though we will likely take longer on occasion.

What Agencies Do

  1. Introduction. This syllabus; casebook 1–8 and 13–25 (skim for background only); casebook 345–54.
    • Londoner v. Denver, 210 U.S. 373 (1908).
    • Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915).
    • Discussion problem: HUD eviction regulations.
  2. Due process I. Casebook 354–383.
    • Goldberg v. Kelly, 397 U.S. 254 (1970).
    • Wisconsin v. Constantineau, 400 U.S. 433 (1971).
    • Bd. of Regents v. Roth, 408 U.S. 564 (1972).
    • Perry v. Sindermann, 408 U.S. 593 (1972).
    • Paul v. Davis, 424 U.S. 693 (1976).
  3. Due process II. Casebook 392–414.
    • Mathews v. Eldridge, 424 U.S. 319 (1976).
    • Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
  4. Forms of adjudication. Casebook 425–450; skim APA §§ 554, 556, 557, 702, and 706. (Sections of the APA are reprinted in Appendix B to the casebook.)
    • Dominion Energy Brayton Point, LLC v. Johnson, 443 F.3d 12 (1st Cir. 2006).
    • Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).
    • Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990).
    • Withrow v. Larkin, 421 U.S. 35 (1975).
    • 5 U.S.C. §§ 554, 556, 557, 702, 706.
  5. Judicial review of agency adjudications. Casebook 472–498 and 504–506; skim APA §§ 702–06.
    • Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).
    • Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998).
    • Richardson v. Perales, 402 U.S. 389 (1971).
    • 5 U.S.C. §§ 702–706.
  6. Introduction to rulemaking. Casebook 507–27; APA § 553.
    • Nat’l Petroleum Refiners Ass’n v. FTC, 482 F.2d 672 (D.C. Cir. 1974).
    • Heckler v. Campbell, 461 U.S. 458 (1983).
    • Bowen v. Yuckert, 482 U.S. 137 (1987).
    • 5 U.S.C. § 553.
  7. APA rulemaking I. Casebook 534–41, 553–54, and 561–75.
    • SEC v. Chenery Corp. (“Chenery II”), 332 U.S. 194 (1947).
    • Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).
    • Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991).
  8. APA rulemaking II. Casebook 576–92.
    • Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973).
    • Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008).
    • United States v. Nova Scotia Food Products Corp., 568 F.2d 240 (2d Cir. 1977).
  9. APA rulemaking III. Casebook 623–26 and 641–67.
    • Mendoza v. Perez, 754 F.3d 1002 (2014).
    • Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993).
    • Pac. Gas & Elec. Co. v. Fed. Power Comm’n, 506 F.2d 33 (D.C. Cir. 1974).
    • Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987).
  10. Hard-look review. Casebook 667–702; review APA § 706.
    • Nat’l Tire Dealers & Retreaders Ass’n v. Brinegar, 491 F.2d 31 (D.C. Cir. 1974).
    • Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29 (1983).
    • FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).