Administrative Law 200 -- Fall 2003
Mr. Froomkin Rm. 382, Tel. 284-4285
Class meets M/T/W at 11:00am-11:55, Rm. 408
There is one required book for the course:
Strauss, Rakoff & Farina, Administrative Law (Revised 10th
ed.)
Please note that the 10th edition contains many changes from its predecessors.
You might be able to get away with an un-Revised 10th edition, but there is NO WAY you can make do with a 9th edition or earlier.
Thomas
O. Sargentich, Administrative Law Anthology is a
useful book if you find yourself getting confused. Administrative
law is one of those strange subjects in which attempts to
(over)simplify tend to cause confusion. Sargentich's book will
introduce you to some of the murky depths -- which can actually be
helpful.
It's likely that I will produce a small packet of photocopied materials
later in the
semester.
How to contact me.
I urge you to contact me if you have questions, comments, or suggestions
about the class. I cannot stress strongly enough how important it is to
come and see me early in the semester if you think you need help
understanding something. If you are doing the reading but still feel lost
or confused, don't wait until the last three weeks of class. I can help.
But not at the last minute.
You can call me at 284-4285. Most days, I am in and out of the office.
If you get my voice mail, leave a number and state when is the best time
to call back.
You can come by my office, Rm. 382, any time, but since I'm in and out
erratically, I advise you to call ahead and make an appointment.
I sometimes get busy and may have to ask you to come back later. My
office hours are [to be announced] for walk-in.
I'm sure to be free then, so if you are able to come then, please do;
other times can be reserved by appointment (e-mail for appointment, or
call if you can't email).
Probably the easiest way to contact me is to send me e-mail at froomkin@law.miami.edu.
Include a telephone number if you prefer a more human response.
Class Policies
Classes will a mix of question and answer and lectures. You should feel
free to interrupt to ask a question by raising your hand at any time. If
time is very pressing, I may have to ask you to wait until after class.
Please do not take it personally.
Attendance. I will take formal attendance in this class.
Excessive absence will detract from your
class participation credit and may even make it negative. If you are
consistently absent I will contact
the Dean of Students office and ask them to drop you from the class.
Safe harbor: if you skip three or fewer classes I guarantee you will not
suffer any deduction from class participation credit, so there's no need
to even bother with excuses for the rare and inevitable absence.
Lateness. There has
been an epidemic of lateness since I stopped wearing a suit to
class. In retaliation, I will count latenesses. Two
lateness will equal an unexcused absence. I deeply regret
the need to do this.
Taping. No classes may be taped without my specific permission,
which will not be given for reasons other than verified medical emergencies,
or to students with particular disabilities. Tapes make me nervous.
Grading.
-
Exam. Grades will be based primarily on an open book
take-home final exam. I am tentatively planning an 8-hour take-home with
either two or three questions. Some years there has been a
choice of questions, others not. In conformity with the new take-home
exam policies suggested by the Dean's office, the take home will be an
eight hour exam, pickup at 9am, drop off at 5pm on the day scheduled by
the Dean's office. This should minimize, and perhaps eliminate, exam conflicts.
In the event it does not, please do not contact me to discuss exam conflicts
as this undermines the blind grading system. Contact the Dean
of Students office for all exam conflict issues.
-
Class participation. Extraordinarily good class participation
("two
stars") will raise your final grade by one level (e.g. from a B+ to an
A); good class participation ("one star") will raise your grade by one
level if you are close to the line between two grades; very poor class
participation will lower your grade by one level if you are close to
the
line between two grades ("minus one star" -- this almost never
happens);
outrageously bad class participation (i.e. disruptive or offensive
behavior)
will lower your grade one level. [Thankfully, this is extraordinarily
rare.] In general, you will find it to your advantage to
volunteer,
and not to your advantage to pretend to be prepared when I call on you.
You
will find it highly costly to disrupt class by talking or acting in a manner
that disturbs your neighbors (my pet peeve).
- Attendence. Very poor attendance may contribute
to a diagnosis of very poor class participation. At some fairly extreme
point, if you cut too many classes I will contact the Dean of Students'
office to suggest you have withdrawn yourself from the class. [I have done
this, alas.]
-
Mechanics of Grading. Consistent with the law school's rules,
I grade all exams "blind" -- I see only the blind grading number, not your
name. I do not curve grades in this class; the chips fall where they
may: in theory there could be all A's, or none, although reality tends
to fall between these extremes. After I turn in the exam grades to
the Registrar's office, the Registrar's office produces a list of names
and blind grading numbers so I can factor in class participation.
However, I ask my secretary not to show me this list, and instead I am
given a list of blind grading numbers sorted by the class participation
grades (one star or two stars) I have already given to my secretary.
I then compute the final grade. I make it a point to not know the
names that go with an exam until after the final grade has been turned
into the Registrar's office. Once grades are turned into the Registrar's
office, the law school's rules prohibit me from changing a grade for ANY
reason other than clerical error. These are rare.
Disabilities. This class, like most law school classes, is heavily
oriented toward reading a large quantity of difficult material in a small
amount of time. If you are aware that you have a learning disability, or
if you just think that it takes you twice as long to learn things by reading
as other people, please talk to the Disabilities Issues Coordinator, Assistant
Dean Marnie Lennon who can tell you about resources here that you may find
valuable. All discussions will be totally confidential. Any student who
believe (s)he suffers from acute "stage fright" and underperforms in public
should see me early in the semester to see if we can work out special arrangements
in which you e-mail some answers rather than giving them orally.
Electronic Mailing List. I will operate an electronic mailing
list for this class. Any message sent to the list will be transmitted to
me, and to all other members of the list, as will replies. I hope this
will provide a convenient way for you to share questions and answers about
the course. Participation in the list is like class participation: providing
good answers to your colleagues' questions is another way to rack up class
participation credit. You are required to join this mailing list and
to at least skim messages on it.
How to subscribe to the mailing list
From the computer at which you wish to receive mail, click here
[that's mail to rllirald@law.miami.edu with a subject line that says "Join
intl03" if you are reading this offline]
which will allow you to send a message asking to be subscribed. After you have done
this you will be able to send mail to the list
at adlaw03@law.miami.edu.
Please try to think of the list as an extension of class: anything relating
to the substance or procedure of the class is welcome, but irrelevant things
are not. The usual rules of civility apply to email just as they would
to class. And, I give class participation credit for thoughtful, relevant,
pithy, participation on the list, just as I do for similar contributions
in class.
Answers to frequently asked questions:
How do I "brief" a case for this class?
This is the most commonly asked question at the start of the semester.
Sadly, there is no perfect answer that works for everyone. You have to
do what works for you, which may be very different from what works for
me, or for the person sitting next to you. The same technique may not work
in every course. Experiment.
Some people find it useful to head the case brief with "question presented".
I do not object to this, but I do not advocate it for several reasons.
First, it suggests that there is only one question when there are usually
several. Second, it suggests that the court limited itself to questions
raised by the litigants which is not always the case. Third, I find it
confusing when there are fractured opinions in which the Justices do not
all discuss the same issues. Fourth, even in the best of circumstances
there is no way to figure out what the question presented really is until
you have fully digested the case. Personally, I find it easier to put this
information nearer the end, under "holding".
Whatever method you use, I would hope you know the answers to the following
questions about a case if called upon (some parts of the following may
not apply to a particular case):
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Parties. Who are the parties? What is their relation to the case?
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Procedural History. This is especially critical in a course on Administrative
Procedure.
You need to identify what the agency did. You need to categorize that action,
especially if the APA applies. You need to identify the various steps in
the agency's actions. Who did what, when. What did the party bringing the
suit do, if anything, before the matter went to court? It's also useful
to figure out what the lower courts (if any) did and why, but it's essential
to know what the agency did -- and not just the facts of what the agency
did but the legal categories applicable (e.g. formal rulemaking? informal
adjudication?).
-
Arguments. This too is critical. Figuring out the parties' legal and factual
arguments may be more important than figuring out the court's decision.
After all, the court tells you its decision; figuring out the arguments
takes work. But it is important work: parties rarely make frivolous arguments
on appeal, if only because appeals are expensive. If the court does not
identify one side's argument as sanctionable, it's a good bet that they
had a serious argument (maybe better than the one that the court adopted),
and that you need to understand it. Indeed, you may be called upon in class
to make it. And only by knowing what argument the court rejected can you
possibly understand (1) what the court decided; (2) why (whether) this
is an important case; (3) whether the court got it "right".
-
The holding. What did the court actually decide? Did it address all of
the parties' arguments? If not, why not? If the opinion is from a multi-member
court, and is not unanimous, be certain you understand where and why the
opinions differ. In reading fractured Supreme Court opinions it is particularly
important to be absolutely certain you know how many Justices agree with
each significant point in an opinion, even if you have to annotate the
case paragraph-by-paragraph to be certain. Remember, it takes five Justices
to make up a majority; anything less is not binding on the lower courts.
-
Loose ends. What's not decided by the opinion (explicitly or implicitly)?
What's the next case of this kind going to be about?
Do not expect to be able to capture all this in a single paragraph or on
your first try. Ordinarily it is just not possible. More may be better
than less; you can worry about summarizing it when you do your review at
the end of the semester and have a clearer idea of what is important.
How long should I be spending on homework each
week?
A long time. This stuff is not easy. Whizzing through cases might mean
that you are a legal eagle; odds are, it means you have completely missed
the point.
Where can I look things up if I'm confused?There
are several excellent reference works on Administrative Law available in
the Library. I like the several books by Peter Strauss and the multi-volume
treatise by Kenneth Culp Davis. If you have a very practice-oriented question
Pike & Fischer is sometimes useful. I hear that the Nutshell is better
than average, although I confess I've never checked. For constitutional
issues, such as the separation of powers cases, Larry Tribe's American
Constitutional Law would probably be a good first choice.
Should I buy a commercial outline or hornbook?
You do not need one. Indeed, some of the them are positively dangerous
as they contain errors and misinformation or outdated information. Beware.
On the other hand, I have found that as hornbooks go William J. Fox, Jr,
Understanding
Administrative Law (3rd ed. 1997 Matthew Bender), is good...as far
as it goes. It is very clear, but tends to emphasize different things from
what I'm most interested in. It is a good place to look if you are confused
about something basic but will not, alas, substitute for the casebook or
classes.
Will this be on the exam?
Anything we discuss in class, on the e-mail mailing list (so long as it's
relevant to the class, of course), or that appears in the assigned portions
of the casebook, the supplement, or any additional photocopied readings
that I assign is fair game for the exam, unless I specifically say otherwise.
Please note that you are not expected to be responsible for material
from the Pike & Fischer handouts unless we discuss it in class or on
the mailing list.
What can I do to get a better grade on the
exam?
The number one most common error on law school exams is a failure to read
the question carefully. Students tend to prepare by subject, e.g. "the
Erie doctrine". When they see a question with the word "Erie" in it, they
take it as a cue to write down everything they remember about the Erie
doctrine and the Erie line of cases regardless of its relevance to the
question. This is rarely a good move, if only because you waste time you
could have spent writing something relevant, and it's usually a particularly
BAD move on an open-book exam, where the premium is on analysis and application,
not rote memory. Read the question. Try to figure out what the point of
it is. Stick to the point in your answer. My questions are rarely as simple
as "tell me everything you remember about the Erie doctrine". And I do
not give partial credit for correct but irrelevant information. (I do sometimes
give partial credit for correct but misplaced analysis of a complex problem
caused by a "wrong turn" at an earlier stage of the analysis, but that's
a different scenario.) Having said all that, you should of course make
full use of relevant cases, citing them by name. Cases are important. But
so is the Administrative Procedures Act.
The number two most common error on law school exams consists of misunderstanding
the nature of legal writing. Good legal writing is clear, precise, and
well-organized. It is written in plain, simple english, with as few long
words as possible. (Yes, many judges do not write well.) There is no point
in trying to be clever or funny. At all costs avoid using fancy words if
you are not absolutely certain what they mean. You are being graded on
substance, not style. Resist the temptation to use slang ("Get real!" and
"Strike three!" are unfortunate examples from past exams). Resist the temptation
to use legal or latin terms if a simple english word will do. Don't quote
rules at length (they are being given to you as part of the exam). But
do be sure to cite rules and cases where relevant, and to explain the relevance.
A related, and also frequent, error on law school exams is a failure
to be sufficiently specific. Legal writing is a form of technical writing.
It thrives on precision and often on detail. I suggest that you always
avoid the passive voice because it allows you to neglect to specify the
identity of the actor in your sentence. It's far better to use a boring
writing style "Subject, verb, predicate" over and over again than to be
confusing or to leave out something important.
A third, surprisingly frequent, error is forgetting the point of view
you are supposed to take in answering a question. Some questions ask you
to be the judge; others ask you to be the advocate for a party; still others
may require that you step back from the fray and adopt a policy perspective.
There are differences between these roles. For example, a judge is quite
likely to be concerned about judicial economy. A litigant is only going
to urge a course of action that furthers judicial economy if it furthers
her interests; otherwise, a litigant is going to try to explain to the
court why a particular outcome is just even though it is not the most efficient.
On the other hand, just because you are a litigant does not mean that you
ignore authority contrary to your position. The best arguments are those
that take full account of the strongest possible argument on the other
side and demolish it; the worst arguments are those that sound like the
author never heard of the other side ... and if there is authority for
the other side, the author of the weak argument may be facing Rule 11 sanctions.
If a question asks for an argument, make one; if it asks for both sides,
make two arguments and be sure you label which is which.
My grades have been disappointing. What can
I do to improve?
The first thing to do is to make an appointment with the professors who
gave you the disappointing grades in order to discuss the exam. Although
your professor cannot change the grade, you should find out what went wrong
so that you can avoid making similar mistakes in the future.
I also strongly recommend Richard Michael Fischl & Jeremy R. Paul, Getting to Maybe: How to Excel on Law School Exams (1999). It's great!
I never did much writing in college, where
I can I get writing help now?
If you have reason to believe that you need additional help, feel free
to talk to me. Also, you should watch for announcements about the U.M.
Writing Center. Note, however, that the kind of help you are likely to
be offered from me will probably mean extra work for you, such as writing
additional practice essays.
What can I do to help me become a better lawyer?
One of the best things you can do is become well-informed about the world
around you. Subscribe to a national newspaper such as the
New York Times. The Times is by far the best newspaper available here
when it comes to administrative law and constitutional issues, although
the
Washington Post might be even better. I particularly like the
Post's Federal
Page.