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Law and the Administrative Process

 John M. Scheb and John M. Scheb II (Wadsworth Publishing Co. 2005)

From Chapter One:

"As a constitutional republic, the United States is founded on the idea of the rule of law.  Although we all understand that government officials must have a reasonable degree of discretion in performing their duties, we are equally aware that power corrupts and that discretion is prone to abuse. Thus we demand that officials and agencies will operate within parameters established by law and that when they violate legal constraints, legal sanctions will be imposed on them.  We expect that in making policies and rulings, government agencies demonstrate procedural regularity, that is, that set procedures will be followed in good faith.  We also expect that the substance of these policies and rulings will be fair, reasonable and just.  As citizens in a democracy, we believe that the people have a right to know what their government is up to, and so we demand that decisions are made in a way that is transparent and that information collected by the bureaucracy is accessible to the public.  Finally, as residents of the information age, we understand the threats posed to our privacy when agencies collect data about our activities and conditions.  All of these matters are important concerns of administrative law.  Administrative law strives to make governmental bureaucracy conform to the rule of law and in so doing protect the values of freedom, equality, privacy and democracy,"

Law and the Administrative Process Table of Contents

Chapter 1: Fundamentals of Administrative Law

  • Introduction
  • Law and Bureaucracy
  • Institutional Foundations of Administrative Law
  • Administrative Law: A Roadmap    
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Endnotes

Chapter 2: The Evolution of the Administrative State

  • Introduction
  • Creation of the Federal Bureaucracy
  • State and Local Government during the Formative Years of the Republic
  • Emergence of the Administrative State
  • The Era of Progressive Reform
  • The Great Depression and the New Deal
  • World War II and the Cold War Era
  • The New Frontier, the Great Society and the Welfare State
  • The Golden Age of Regulation
  • The Reagan Revolution
  • Reinventing Government? The Clinton Years
  • George W. Bush and the War on Terrorism
  • The Federal Bureaucracy Today
  • Contemporary State and Local Administration
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Endnotes

Chapter 3: Constitutional Sources of Bureaucratic Power and Restraint

  • Introduction
  • The Federal Context
  • The State and Local Context
  • Constitutional Rights as Limitations on Bureaucratic Power
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Edited Cases
    • Lorillard Tobacco Company v. Reilly
    • Whitman v. American Trucking Associations
    • Nollan v. California Coastal Commission
  • Endnotes

Chapter 4: The Statutory Framework of the Administrative Process

  • The Statutory Authority of Agencies
  • Interpretation of Agency Powers
  • The Administrative Procedure Act and Its State Counterparts
  • Statutory Requirements Promoting Openness in Public Administration
  • Statutory Protections for Individual Privacy
  • Other Key Statutes Affecting the Administrative Process
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Edited Cases:
    • Bob Jones University v. United States
    • Food and Drug Administration v. Brown and Williamson Tobacco Corporation
    • Department of Justice v. Reporters' Committee
    • FCC v. ITT World Communications, Inc.
    • Eco, Inc. v. City of Elkhorn
    • Minnesota Medical Association v. Minnesota Department of Public Welfare
  • Endnotes

Chapter 5: Rulemaking

  • Introduction
  • The Basics of Rules and Rulemaking
  • Exempt Rulemaking
  • Informal and Formal Rulemaking
  • Hybrid Rulemaking
  • Negotiated Rulemaking
  • Publication and Codification of Rules
  • The Rulemaking Record
  • Regulatory Flexibility Analysis
  • Waivers and Variances
  • Executive Oversight of Rulemaking
  • Legislative Control of Rulemaking
  • Ex Parte Contacts by Decision Makers
  • Rulemaking at the State Level
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Edited Cases:
    • Chevron U.S.A. v. Natural Resources Defense Council 
    • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council
    • State v. Peters
    • Detroit Base Coalition for the Human Rights of the Handicapped v. Dept. of Social Services
  • Endnotes

Chapter 6: Investigation and Enforcement

  • Introduction
  • Compulsory Process
  • Inspections, Searches and Seizures
  • Audits and Examinations
  • Deportation and Administrative Detention
  • Suspension and Revocation of Licenses
  • Cease and Desist Orders
  • Imposition of Administrative Fines
  • Civil Suits to Enforce Regulations and Orders
  • Criminal Prosecutions
  • Liens, Levies and Garnishments
  • Forfeitures
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Edited Cases:
    • Dow Chemical Co. v. United States
    • Gilpin v. Montana Board of Nursing
    • Austin v. United States
  • Endnotes

Chapter 7: Adjudication

  • Introduction
  • Applicability of Administrative Procedure Acts
  • Formal and Informal Adjudications
  • Agency Adjudication and Due Process of Law
  • Alternative Forms of Dispute Resolution
  • The Right to Counsel
  • Formal Adjudications and the Administrative Law Judge
  • Prehearing Processes in Formal Adjudication
  • Formal Adjudicatory Hearings
  • Decisional Processes in Formal Adjudication
  • Ex Parte Contacts
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Edited Cases:
    • United States v. Florida East Coast Ry. Co.
    • Goldberg v. Kelly
    • Mathews v. Eldridge
    • Van Morfit v. University of South Florida
  • Endnotes

Chapter 8: Political Control of Agencies

  • Introduction
  • Legislative Oversight
  • Executive Control of the Bureaucracy
  • Direct Control of the Bureaucracy by the Electorate
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Edited Cases:
    • Immigration and Naturalization Service v. Chadha
    • Wiener v. United States
    • Bowsher v. Synar
  • Endnotes

Chapter 9: Judicial Review of Agency Actions

  • Introduction
  • Reviewability of Administrative Actions
  • Selecting the Proper Judicial Forum
  • Statutory Preclusion of Judicial Review
  • Justiciability
  • Review on the Merits
  • Deference to Agency Determinations
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
  • Edited Cases:
    • Citizens to Preserve Overton Park v. Volpe
    • Heckler v. Chaney
    • Lujan v. National Wildlife Federation
    • Freeman Hall, d/b/a Freeman's College City Lounge v. Alabama Alcoholic Bev. Control Bd.
  • Endnotes

Chapter 10: The Rights of Public Employees

  • Introduction
  • The Civil Service
  • Due Process Protections for Public Employees
  • Employees' Unions, Collective Bargaining and the Right to Strike
  • Civil Rights Protections for Public Employees
  • First Amendment Rights
  • Fourth Amendment Rights
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion
    • Kenner Police Dept. v. Kenner Municipal Fire & Police Civil Service Board
    • Cleveland Board of Education v. Loudermill
    • Johnson v. Transportation Agency
    • Rankin v. McPherson
    • Shelton v. University of Medicine & Dentistry of New Jersey 
    • National Treasury Employees Union v. Von Raab
  • Endnotes

Chapter 11: Governmental Liability

  • Introduction
  • Sovereign Immunity
  • The Federal Tort Claims Act
  • Violation of Constitutional Rights
  • Immunity of Federal and State Officials
  • Liability of State and Local Governments
  • Conclusion
  • Key Terms
  • Questions for Thought and Discussion 
  • Edited Cases
    • United States v. Gaubert
    • DeShaney v. Winnebago County Department of Social Services
    • Bivens v. Six Unknown Federal Narcotics Agents
    • Manna v. State
  • Endnotes

Appendix A: The Constitution of the United States of America
Appendix B: The Federal Administrative Procedure Act: Selected Provisions
Appendix C: Basic Legal Research

Glossary
Table of Cases
Index