ADMINISTRATIVE LAW

Fall 1997

Professor Light

December 13, 1997

Instructions: This is a three-hour closed-book examination. There are 100 Apoints.@ The exam consists of four parts. Part I is multiple choice. Place the letter of the correct answer for each of the 25 questions in your bluebook. Spend no more than a hour on these! Part II starts at page 13. It is an issue-spotter type question worth 40 pts. Spend an hour or more on this part, since it is 40% of the exam points. Part III starts at page 15. It is a legal strategy question worth 25 pts. Spend about 45 minutes on it, or less. Part IV is found on page 16. This short paragraph raises a policy point to be discussed. It is worth 10 points. Spend only about 15 minutes on it.

 

I. Multiple Choice (One Hour - 25 questions - 25 pts)

1. In Lujan v. National Wildlife Federation, 497 U.S. 871 (1990), the Court considered on a summary judgment motion whether affidavits would suffice to enable the National Wildlife Federation to challenge the entirety of the Department of Interior=s Aland withdrawal review program.@ The Court decided--

A. The matter was reviewable because Congress had provided a right to challenge regulations in the Federal Land Policy & Management Act of 1976.

B. The matter was reviewable because Congress had provided a right to challenge regulations in the Administrative Procedure Act.

C. The matter was reviewable because the agency action constituted a substantive rule which as a practical matter required the plaintiff to adjust its conduct immediately.

D. The matter was reviewable because individual actions of the BLM, the defendant, identified in the affidavits adversely affected members of the National Wildlife Federation, the plaintiff.

E. The matter was not reviewable.

 

2. In Franklin v. Massachusetts, 505 U.S. 778 (1992), discussed in the Dalton case, Massachusetts tried to regain a seat lost in the 1990 census. The Court explained that the action that creates the entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President=s statement to Congress, not the Secretary=s report to the President.

A. The Court held that since the President is not an Aagency@ within the meaning of the APA, there is not final agency action that may be reviewed under the APA standards.

B. The Court held that since the matter involves the division of responsibility between the President and the Congress, it is a political question beyond the scope of judicial review.

C. The Court held that the since the matter involves the division of responsibility between the President and the Congress, it involves an important issue of public policy which should be resolved by the Court immediately.

D. The Court held that since the President is an Aauthority of the United States@ which is not listed among the exceptions to Aagency@ under the APA, the matter may be reviewed as final agency action under the APA.

E. None of the above.

 

3. The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 contains the following jurisdictional provision:

ASec. 113. (a) Review of any regulation under this Act may be had upon application by any interested person only in the Circuit Court of the United States Court of Appeals for the District of Columbia. Any such application shall be made within ninety days from the date of promulgation of such regulations. Any matter with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or to obtain damages or recovery of response costs.@

The D.C. Circuit interpreted this language in Eagle-Picher Industries v. EPA, 759 F.2d 905 (D.C. Cir. 1985).

A. The court held that the opportunity for pre-enforcement challenge is not enough to satisfy the due process right of access to the courts.

B. The court held that there is no opportunity for pre-enforcement judicial review of issues of statutory construction under this provision of the Act.

C. The court held that as a general proposition, if there is any doubt about the ripeness of a claim, a citizen must bring his challenge in the pre-enforcement challenge or risk being barred.

D. The court reasoned that in deciding whether an issue may be presented in an enforcement action, the court must make a retrospective determination as to whether it would have the claim ripe had it been brought on time.

E. The court reasoned that foreclosing review at the enforcement stage--particularly when criminal sanctions are involved-- is unconstitutional.

 

4. In Darby v. Cisneros, 509 U.S. 137 (1993), a real estate developer sought judicial review of a decision, rendered by an ALJ in the Department of Housing and Urban Development, that he had engaged in improper financial practices and should be disbarred from participating in federal programs for 18 months. HUD=s regulations provided that an ALJ=s decision would be final unless the Secretary or his designee reviews the finding, and that Aany party may request such a review in writing within 15 days of receipt of the [ALJ]=s decision.@ The Supreme Court held--

A. A plaintiff always must exhaust available administrative remedies before seeking judicial review under the APA.

B. A plaintiff must exhaust available administrative remedies before seeking judicial review under the APA, except where the agency=s statute specifically exempts the agency from such a requirement.

C. A plaintiff must exhaust available administrative remedies before seeking judicial review under the APA, except where the agency=s statute or its own rules specifically exempt the agency from such a requirement.

D. A plaintiff need not exhaust available administrative remedies before seeking judicial review under the APA, except where the agency=s statute or rules specifically mandates exhaustion as a prerequisite to judicial review.

E. A plaintiff need not exhaust available administrative remedies before seeking judicial review under the APA, except where the agency=s statute specifically mandates exhaustion as a prerequisite to judicial review.

 

 

5. In Lincoln v. Vigil, 508 U.S. 182 (1993), in interpreting the APA the Supreme Court recognized certain categories of administrative decisions that courts traditionally have regarded as Acommitted to agency discretion.@ These categories include--

A. Decisions not to take enforcement action.

B. Refusals to grant reconsideration of an action because of material error.

C. Decisions to terminate an employee in the interests of national security.

D. All of the above.

E. None of the above.

 

6. In Block v. Community Nutrition Institute, 467 U.S. 340 (1984), the Supreme Court considered whether consumers and a nonprofit organization promoting good nutrition for lower income families could challenge the Secretary of Agriculture=s decision that a higher price applied to reconstituted milk than to milk used to produce butter, cheese, or milk powder. The Supreme Court interpreted the Agriculture Marketing Agreement Act and held--

A. Congress intended to strip the judiciary of all authority to review the Secretary=s milk market orders.

B. Congress intended that milk market orders be exempt from judicial review under the APA.

C. Congress intended that only producers and handlers, not consumers, might seek review of milk market orders.

D. Congress intended that all those aggrieved by a milk market order be able to seek judicial review under the APA.

E. Congress intended that any citizen be able to seek judicial review of a milk market order under the APA.

 

7. Suppose the U.S. EPA promulgates regulations requiring all businesses to permit random warrantless administrative inspections of their waste disposal operations. Suppose, further, that the Constitution of the State of Florida flatly prohibits inspections of private property without a warrant.

A. The EPA regulation cannot preempt State law because the regulation is not legislation of the Congress.

B. The EPA regulation cannot preempt State law because the State law involved is constitutional, rather than statutory, law.

C. The EPA regulation cannot preempt State law because warrantless searches are prohibited in the bill of rights.

D. All of the above.

E. None of the above.

 

8. In Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the plaintiffs challenged a federal regulatory action that they alleged would endanger certain species abroad. The plaintiffs alleged that they had in the past, and would in the future, travel abroad to visit the habitats of these species. Nonetheless, the Supreme Court that the plaintiffs lacked standing. In SCRAP, an environmental group sued to keep railroad freight charges low, claiming that higher freight rates would cause increased use of non-recyclable containers, which would result in more litter in Washington-area national parks. The Supreme Court allowed the case to go forward notwithstanding a challenge to the plaintiffs= standing. What distinguishes these cases?

A. The injury alleged in the Lujan case was considered more serious than the injury to the group's members who "breathed the air" and "used the forests@ in the Washington area involved in the SCRAP case.

B. The injury alleged by plaintiffs in the SCRAP case was so similar to that of others also injured and so widespread that the Government actions could be questioned by no one.

C. The injury alleged by plaintiffs in the SCRAP case was not sufficiently concrete or imminent because of the lack of specific information about their future plans.

D. All of the above.

E. None of the above.

 

9. The Brady Act, 18 U.S.C. ' 922(s), imposes a five-day waiting period for purchases of handguns, during which time the chief law enforcement officer in that jurisdiction must Amake a reasonable effort to ascertain. . . whether receipt or possession [of a handgun by the prospective customer] would be in violation of the law, including research in whatever State and local record keeping systems are available and in a national system designated by the Attorney General.@ Local law enforcement officer have challenged this Act as unconstitutional in Printz v. United States, decided by the Supreme Court this past summer. The challenge was based on--

A. The limits of the Commerce Clause explained in United States v. Lopez.

B. The implied limits on Congress=s powers explained in New York v United States.

C. Limitations on the delegation of power explained in A.L.A. Schechter Poultry Corp. v. United States.

D. The right to bear arms set forth in the Second Amendment.

 

10. Suppose Congress enacts a uniform product liability statute to govern recovery by private parties of damages for personal injury or property loss resulting from product defects. The Act preempts and replaces state tort law with uniform national liability standards. Suppose, further, that the Act contains no provisions addressing the jurisdiction of the federal courts to hear cases or controversies arising under the Act.

A. The federal district courts will have jurisdiction to hear cases or controversies arising under the Act, pursuant to 28 U.S.C. ' 1331.

B. The state courts will have jurisdiction to hear cases or controversies arising under the Act under various state jurisdictional statutes.

C. The Supreme Court may decline to hear challenges to the statute=s constitutionality within its discretion.

D. All of the above.

E. None of the above.

 

11. Congress has sporadically attempted to reassert its authority by enacting structural or Aquasi-constitutional@ statutes. Although consisting of ordinary legislation, these measures attempt to structure future legislative and executive decisions in much the way that a constitution would. Which of the following structural statutes is (are) invalid under the Constitution?

A. Congress= attempt to control administrative agencies by creating a legislative veto, which would allow one or both Houses of Congress to invalidate decisions made by administrative agencies.

B. Congress= attempt to structure prosecutorial decisions when wrongdoing is alleged against high executive officials by mandating the appointment of independent counsel.

C. Congress= attempt to control future spending decisions by structuring executive decisions regarding spending of appropriated funds.

D. All of the above.

E. None of the above.

 

12. A plaintiff in federal court does not lack constitutional standing to raise an issue even if--

A. He lacks an injury, distinct and palpable, not abstract or conjectural or hypothetical.

B. He lacks proof that the injury is fairly traceable to the challenged action.

C. He lacks proof that relief from the injury is likely to follow from a favorable judicial decision.

D. He lacks proof that he is an intended beneficiary of the constitutional provision at issue.

E. His claim only involves a generalized grievance that is common to all members of the public.

 

13. Polluter receives a subpoena duces tecum from the United States Environmental Protection Agency. The polluter refuses to comply. EPA wishes to compel the giving of testimony and production of documents in accordance with its subpoena.

A. The Federal Rules of Civil Procedure do not apply to proceedings to enforce a subpoena issued by the United States Environmental Protection Agency.

B. The Federal Rules of Civil Procedure do not apply to proceedings to enforce a subpoena issued by the United States Environmental Protection Agency unless provided by statute or by rules of the district court or by order of the court in the proceedings.

C. The Federal Rules of Civil Procedure apply to proceedings to enforce a subpoena issued by the United States Environmental Protection Agency except as otherwise provided by statute or by rules of the district court or by order of the court in the proceedings.

D. The Federal Rules of Civil Procedure always apply to a subpoena issued by any agency of the United States, including the Environmental Protection Agency.

 

14. Though agency subpoenas are often complied with, an agency subpoena has no independent force. Agency enforcement efforts may include an action to collect a sanction prescribed by statute or a summary action to enforce the subpoena, but the obligation to respond is determined only upon judicial review of the underlying order. Which of the following is usually true with respect to such an enforcement proceeding?

A. A subpoena may be issued only with probable cause to believe it will produce evidence of wrongdoing.

B. The evidence sought must be germane to a lawful subject of inquiry.

C. The administrative command need not comply with any privilege to remain noncommunicative.

D. All of the above.

E. None of the above.

 

15. The Supreme Court decision of Brock v. Railway Express. Inc., 481 U.S. 252 (1987), rephrased the Mathews v. Eldridge test of procedural due process in the context of government having a largely regulatory concern, where more than one private interest was affected by the decision. This contrasted with Mathews and other entitlement cases involving a beneficiary vs. the federal agency. In Brock, the constitutionally protected property interest involved was--

A. The right of an at will employee to be free of discrimination.

B. The right of a tenured employee to continuing employment absent cause.

C. The contractual right of an employer to discharge an employee for cause.

D. The contractual right of an employer to discharge an employee for any reason.

E. The public interest in promoting highway safety and protecting employees from retaliatory discharge.

 

16. In Chemical Waste Management, Inc. v. EPA, 873 F.2d 1477 (D.C. Cir. 1989), the D.C. Circuit considered the EPA=s procedures for issuing corrective action orders under the Resource Conservation and Recovery Act. In deciding that no formal hearings were required, the court relied upon--

A. Prior agency interpretations of similar provisions of the same statute dealing with corrective action in the context of permits.

B. The clear statutory language governing the procedural requirements for issuance of such orders.

C. The reasonableness of the agency=s interpretation of the statutory requirements.

D. All of the above.

E. None of the above.

17. The Administrative Procedure Act contains definitions for Arule@ and Arulemaking@ and Aorder@ and Aadjudication.@ Which of the following would fall within the definition of Aorder.@

A. An agency statement of particular applicability designed to interpret law.

B. An agency statement of general applicability describing procedure and practice requirements of an agency.

C. The prescription of prices

D. All of the above.

E. None of the above.

18. Which of the following cases elaborated the standard of judicial review in formal adjudication?

A. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

B. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).

C. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

D. Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).

E. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

19. Which of the following cases is most likely to be cited in a government brief or in a judicial opinion involving administrative law?

A. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

B. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971).

C. Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519 (1978).

D. Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983).

E. Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984).

 

20. Which of the following forms of issue preclusion is most likely to be applied against the Government in the same way as against private parties?

A. Mutual, defensive collateral estoppel

B. Mutual, offensive collateral estoppel

C. Non-mutual, defensive collateral estoppel

D. Non-mutual, offensive collateral estoppel

E. Res judicata

 

21. Which form of the doctrine of agency non-acquiescence is likely to be of most concern to the judiciary?

A. Non-acquiescence to circuit court opinions of another circuit.

B. Non-acquiescence to circuit court opinions in the same circuit.

C. Non-acquiescence to district court opinions in the same circuit.

D. Non-acquiescence to district court opinions in the same case.

 

22. Which of the following regulations would be retroactive as defined in Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988) and Landgraf v. USI Film Products, 511 U.S. 244 (1994)?

A. Regulation imposing civil penalties for pre-adoption releases of a pollutant in violation of the new standard.

B. Regulation requiring all plants within the scope of the regulation to dismantle pollution-control technology installed in response to a prior, less stringent regulation and invest in new technology.

C. Denial of a permit to operate a newly constructed power plant based on a new regulation adopted between the time of application for the permit and final agency action on the permit.

D. All of the above.

E. None of the above.

 

23. Which of the following most accurately describes what triggers application of the procedural requirements found in sections 556 and 557 of the APA, as discussed in United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973) (Rehnquist, J.)?

A. When rules are required by another statute to be made in terms Aon the record after opportunity for an agency hearing. . .@

B. When rules are required by another statute to be made Aon the record after opportunity for an agency hearing@ (or something like that). . .

C. When Congress, in passing a statute granting an agency rulemaking powers, intends that the rules should be made on the record after opportunity for an agency hearing. . .

D. When Congress by statute grants an agency rulemaking powers concerning subjects as to which Aformal@ hearings would useful and fair, and provides for Ahearings@ to be held. . .

E. When Congress by statute grants an agency rulemaking powers concerning subjects as to which Aformal@ hearings would be useful and fair. . .

 

24. Which of the following statements of legal doctrines are true with respect to intervention in agency proceedings?

A. A party is not necessarily entitled to intervene at the agency level merely because, under existing standing doctrine, she would be entitled to seek judicial review of an unfavorable agency decision.

B. Intervention as of right at the agency level is not limited to parties who would later be entitled to judicial review.

C. The fact that a party was admitted to the agency proceeding does not necessarily ensure standing to challenge the outcome.

D. All of the above.

E. None of the above.

25. Which of the following best describes the current status of the Social Security Administration?

A. An administrative agency within the cabinet Department of Health and Human Services

B. An administrative agency but not within a cabinet department

C. Independent agency within the executive branch

D. Independent agency not within the executive branch

E. Independent regulatory commission

 

II. Issue Spotter (One Hour - 40 pts.)

Ames State U. was one of the first chartered state universities in America. It opened its doors in 1789. The university added a School of Medicine in 1901. In 1950, after an unfavorable inspection by the American Medical Association, the Board of Trustees adopted a number of reforms. Among these was the Board=s approval of a tenure system for the school. The Board=s tenure policy adopted by resolution on April 26, 1952, reads as follows:

 

Regulations Governing Tenure for the School of Medicine

Art.1 . Tenure. To encourage academic freedom and to encourage the retention of competent faculty, the School of Medicine has a tenure system. Tenure is a faculty member=s right of continuing employment unless the University establishes cause to terminate such faculty member.

Art. 2. Appointment and Reappointment. Physicians joining the faculty will serve a probationary period of six years, during which they will be evaluated by a Committee composed of the tenured faculty of the School of Medicine to determine whether they are making reasonable progress toward tenure. Physicians joining the faculty will be appointed by the president of the university for a term of years reasonably appropriate to establishing such reasonable progress. The Committee shall evaluate untenured faculty more than a year prior to the expiration of his or her contract.

Art. 3. Conferral of Tenure. The Committee shall make a recommendation as to whether a faculty member should be granted tenure in the final year of the probationary period. The faculty member may appeal any negative recommendation to the president. The president shall act on the recommendation during the same academic year in which the recommendation is made.

Art. 4. Termination for Cause. The termination of any tenured faculty or the termination of any untenured faculty prior to the expiration date of his contract shall become effective only after determination that there is adequate cause on the record after opportunity for a hearing.

Art. 4. Amendments and Interpretation. Amendment of these regulations may be proposed by the trustees, the president, the dean, or the faculty of the School of Medicine, but shall become effective only following recommendation of the tenured faculty. Interpretation of these regulations, if necessary, shall be made by the Committee of tenured faculty. Except to the extent contradicted by the express provisions of these rules, the provisions of the Administrative Procedure Act of 1946, 5 U.S.C. '' 551-706, shall apply.

At the time the Trustees adopted these regulations, there were four members of the faculty of the School of Medicine. Concurrently with the adoption of the rules, the Trustees granted these faculty members tenure by contract.

On July 3, 1956, the States of Ames adopted the following statute:

 

Ames Administrative Procedure Act

The State of Ames adopts the Administrative Procedure Act of 1946 as the Ames Administrative Procedure Act. Its provisions shall apply to every authority of the State of Ames, which provisions are hereby incorporated into the statutes of this State by reference.

Dr. Spock, one of the school=s original faculty members began serving as the Chair of the Department of Epidemiology in the School of Medicine since October 1991, pursuant to annual consecutive one-year contracts. Each contract appointed Dr. Spock as the Chair and a professor in the school. In October 1997, he was serving under a contract which began August 15, 1997. On October 31, 1997, Dr. Moriarty, Dean of the School of Medicine, asked Dr. Spock to sign a letter of resignation as department chair. Dr. Moriarty, however, refused to explain the reason for the request. Dr. Spock declined. Later that same day, Dr. Moriarty terminated Dr. Spock=s chairmanship through a letter which provided no reason for the action. Dr. Spock remained on the faculty, teaching a course in epidemiology.

As chair of the department, Dr. Spock enjoyed a more favorable position than a professor in regard to his maximum possible compensation. As chair he was also the ex officio member of a number of boards and committees. These memberships contributed to prestige among his peers. Although Dr. Spock remains on the faculty, he has felt trapped by his firing without explanation. The situation proves particularly vexing when he speaks to other medical schools about potential employment opportunities.

On November 21, 1997, Dr. Spock filed suit in Ames State court, asserting a cause of action under the Ames Administrative Procedure Act, 42 U.S.C. ' 1983, and the Fourteenth Amendment of the United States Constitution. He seeks back pay and reinstatement as chair retroactive to the date of his dismissal. On December 7, 1997, the Board of Trustees met at its regularly scheduled fall semester meeting. Dr. Moriarty explained the Spock situation briefly in a confidential executive session. After Dr. Moriarty finished, he was excused from the meeting. Members of the Board expressed outrage at the situation and immediately adopted the following:

Abolition of Tenure in the School of Medicine

 

The Resolution of this Board of Trustees, dated April 26, 1952, entitled, ARegulations Governing Tenure for the School of Medicine,@ is hereby repealed, effective immediately.

You have just been appointed special counsel to Ames State University, for the purpose of defending the lawsuit brought by Dr. Spock. The Board asks that you provide them with your candid assessment of the suit and describe the legal and factual issues which Dr. Spock is likely to present. The Board would also like your view concerning the legal repercussions of the Board=s action to abolish tenure for the suit or otherwise.

III. Essay (45 minutes - 25 pts.)

Your first day on your new FTC job you receive the following memorandum from your boss:

 

PRE-DECISIONAL MEMORANDUM

TO: New Assistant Counsel

FROM: General Counsel, Federal Trade Commission

DATE: January 2, 1998

RE: 0% Financing

The car market for domestic automobiles is weak again, and one of the big three manufacturers has brought back the promotion of 0% financing on the purchase of new cars. I think we should recommend to the Commissioners that they should do something about this problem, and I want your advice how best to proceed. But since you are new to our staff, perhaps you need a little background to understand the problem.

Automobiles are sold by automobile dealers, independent business people who in turn buy them from the manufacturers. When the market for a brand of automobile is weak, the manufacturer's inventory builds up, and the manufacturer cannot move its inventory to the dealer unless the dealer first sells the cars he already has, to the public. Traditionally, in times of market weakness the manufacturer gave the dealer an incentive payment which allowed the dealer to cut his prices even further below list price than he ordinarily would.

A while back the manufacturers discovered that giving incentives directly to the buyers would actually do more to move cars off the lot. Use of this technique began with the offer of direct cash rebates to buyers, but a few years ago changed so that buyers instead were offered 0% financing. This was done by arranging interest-free loans through manufacturers' credit subsidiaries, such as Ford Motor Credit or General Motors Credit Corporation. Any buyer foolish enough to finance through a bank would still, of course, have to pay market rates of interest. But some buyers really do like to buy their cars for cash. So, to entice them to buy, the manufacturers made available incentive payments to dealers which would allow them to offer prospective cash buyers sweeter deals than were given to credit buyers.

We investigated and found that this marketing process created two problems. First, since there was the unstated possibility of getting a reduced price if one paid cash, the implication of the advertising campaign that financing was being offered free was deceptive. Second, since dealers were selling the car and financing as a package, and offering the interest rate of 0%, the degree of competition between manufacturers' financing subsidiaries and banks for automobile loan financing was sharply reduced.

In the end, after some informal jaw-boning with the domestic manufacturers, we got them to agree to set up their schemes to give buyers a known choice between 0% financing and a specified sum as a cash rebate. This made it clear to the buyers that the financing did cost something. However, very few buyers are able to convert a cash reduction of, say, $500 into an interest rate over the life of a three or four year loan. So the buyers remained unable to compare whatever that interest would be with the interest rate being offered by bank lenders.

At the time, I thought we should press further, because it seemed to me that even the "0% or specified cash rebate" advertisements could be found to be "unfair or deceptive" as the Federal Trade Commission Act defines it. But given the political climate of the eighties, I did not think I would get anywhere.

Now one manufacturer has started again in the same "0% or rebate" format, and I fear other manufacturers will follow suit, to meet the competition. But since the last election there is a new political climate, and indeed the new President has had a chance to appoint two new members of the five person Commission. So I think it would be worth trying something more.

What I would like your opinion on is whether we should recommend that the Commission proceed by initiating a rule-making or by starting an adjudication. As I am sure you know, the rule-making provisions of our organic statute would require us to hold what is often referred to as a "hybrid" rule-making, including a trial-type proceeding as to any "disputed issues of material fact." An adjudicatory hearing against any one automobile dealer or manufacturer would, of course, be a formal proceeding. And in adjudication the only remedy we could seek would be a cease-and-desist order. But that does not bother me since my main concern is to set the tone for the marketplace. In either form, we would of course have to establish the presence of the evil in order to justify regulation.

I would like to discuss this with you tomorrow. I trust you will have your analysis and advice ready.

 

Prepare your response.

 

 

IV. (15 minutes - 10 pts.)

The Administrative Law Section of the American Bar Association recently proposed that the ABA endorse judicial use of the device of remanding without vacating a rule when a rule is found defective because the agency inadequately explained its findings or reasoning or where the rule is invalid because of other procedural irregularities not going to the merits.

 

Briefly evaluate this proposal critically. What are arguments pro and con?

I. Multiple Choice - 25 pts. - One Hour

II. Issue Spotter - 40 pts. - One Hour

III. Strategy Essay - 25 pts. - 45 minutes

IV. Policy Point -10 pts. - 15 minutes

 

Have you answered all the questions?