PS 425/625: Administrative Law and Procedure

Dr. Brian Smentkowski

Office: 211H

E-mail: bpsmentkowski@semo.edu

The purpose of this course is to introduce students to the theory and practice of administrative law, rulemaking, adjudication, and regulation from a national, state, and regional perspective. In this class you will learn that administrative law exists in that peculiar region where the fields of law, political science, and public administration converge. As such we will address how governments organize and manage the work of administrative agencies, the role of administrative law judges, as well as some of the "hot topics" that have made administrative law an increasingly dynamic and interesting field of study. Those of you who have even a passing familiarity with contemporary constitutional law will find some of the terrain familiar, as issues such as states' rights and federalism constitute a substantial part of the Rehnquist legacy on the United States Supreme Court.

This course is structured in a cumulative learning format, emphasizing and building upon four dominant themes:

1. The Rule of Law in Public Administration. As an introduction to the field, this section covers the history of both "the administrative state" and the empirical and normative study of it. This is where democracy and bureaucracy collide

2. Elements of Modern Administrative Law. This is where we start to get into the good stuff: doctrines, cases, and principles of administrative law. Rulemaking, enforcement, and judicial review of agency behavior rank among the salient issues.

3. Substantive Issues and Practical Problems in Administrative Law. Ever wonder about public employment, sexual harassment, liability, and immunity? Here's where we address those types of questions.

4. Evaluating Administrative Law. Here's where we get critical about administrative law. Are there too many loopholes? Does the administrative state work very well? What can/should be done?

Because this class emphasizes two types of work, critical and investigative, it is essential that you keep up on the readings as well as the assignments. Graduate students and I will post "discussion questions" at the conclusion of every class session, and it will be up to all involved to answer them by the next class session. Some of the answers will come from the readings in the two books required for the class, while many others will require independent research. This is an upper division/graduate class after all, and you will be expected to find and use various materials accessible through LEXIS-NEXIS Universe.

Grades

Undergraduates and graduate students alike will be required to participate every class session. Undergraduates will be required to write 4 short papers, worth 20% apiece, while graduate students will have to write 3 short papers (20% apiece), plus a term paper worth 20% of the final grade. The undergraduates should look at the 4 short papers as quarterly exams --much like take homes. The graduate students must submit their final papers no later than May 3. Participation will constitute the remaining 20% of the grade for graduate- and undergraduate students.

Reading Materials

Cann, Steven. 2006. Administrative Law. 4th Ed. Sage Publications.

Cornelius, Kerwin M. 2003. Rulemaking: How Government Agencies Write Law and Make Policy. 3d Ed. CQ Press.

The remaining readings will come from sources available via the internet, chiefly through LEXIS-NEXIS Universe.

Tentative Schedule

NOTE: Information on the outside (internet-based) readings is forthcoming. Approximately every second week you will be required to locate, analyze, and report on material derived mostly from LEXIS-NEXIS.

Administrative Law Examination No. 1

Answer both of the questions listed below.  Each question is worth 50 points.  Each answer should be brilliant; no fewer than two pages in length, no more than four. Poorly written papers will suffer, as will those that are not keenly analytical, insightful, and, frankly, correct.

 Your computer-generated and printed answers are due in class on Wednesday, March 1, 2006.

 1.         Since this is a class dealing with the law in general, and the administrative apparatus of government in particular, I want you to critically assess the opinion of the United States Supreme Court in the case of Food and Drug Administration v. Brown and Williamson Corporation, 529 U.S. 120 (2000).  I want you to convince me that you understand the nature of the ruling itself –what, as a matter of law, it hinges upon—as well as its significance to legislative control of the bureaucracy.  This latter part requires you to understand the case in the context of changes in patterns of legislative control.

 2.         The ‘common sense’ approach to the bureaucracy is that the president sits atop the executive hierarchy and as such wields considerable power of the administrative agencies beneath him.  Explain why this is an overly simplistic view of executive control of the bureaucracy.

EXAM #2: This exam is due in class on MARCH 29.

Write a critical analysis of Cornelius M. Kerwin's Rulemaking: How Government Agencies Write Law and Make Policy.  It is absolutely essential that you cover the entire book, explaining its strengths and weaknesses.  You are not allowed to say, "I don't know enough about this to know if it is good or bad..." I want to know, in detail, what you found most/least educational and why...and if you cover too few chapters I will dock your grade.  Any evidence of plagiarism will result in an F for the paper and the class.  Graduate students must do this and cover at least one relevant case from the Cann book (the text book) on rulemaking.  The case is up to you, and your treatment of it had better be good (well informed, critical, analytical, and characterized by some independent thinking on the matter).  Enjoy your spring break...

Exam #3: This exam is due in class on April 26.

In class we discussed the role of the state in due process jurisprudence, and the rather blurry definition of that entity.  Increasingly, governments expand privatization and the contracting of services, and literally hundreds of quasi-governmental and hybrid organizations have emerged, thusly complicating the distinction between private- and governmental (state, public) agencies and actors.  Indeed, your book lists seven types of such entities on pp. 402-403.  What I want you to do for next class session is find one excellent example of one of those entities and explain what it is, when and how it was created, the seemingly private side to it, the governmental side to it (read your notes from April 19 and the chapter on due process to know what this means!), and the function that may traditionally have been a responsibility of government that it serves.  Also, note the extent to which it has been involved in litigation, if applicable.  

FINAL EXAM:

Now that the semester is nearly over, you should have a much clearer sense of what administrative law is and what it involves.  Many probably began with the assumption that it involves a lot of judicial activity, and then discovered that most of it really lives and grows in an environment devoid of electoral accountability --the bureaucracy. It is, therefore, considerably more 'political' (in an institutional sense) than other areas of law.  For this final exam, I want you to develop a new syllabus for this class.  You must define the field and what it involves. You must write a good 'truth-in-advertising' description of the course (this is very important), then --using the syllabus above-- add, drop, move, modify what should be taught and learned, and what kinds of assignments, tests, or papers you would assign.  You should, obviously, use this as your starting point, but change it in light of what you have learned, and what you think students should really know.  Three pages is sufficient.  Your final is due as a WORD document attached to an email submitted from your SEMO email address.  You must submit it on Wednesday, May 10, at any time during the 24 hour period that defines that day (central time, of course). Your subject line must say FINAL EXAM.