Administrative Law and Regulatory Policy
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Description
The tradition course on Administrative Law primarily concerns the delegation of power to administrative agencies, the procedures that the law requires them to follow, the legal requirements for obtaining judicial review of agency decisions, and the standards applied during that review. Critics of this course persistently and increasingly raise two important objections: First, isn’t such a course too abstract? Too remote from the substantive essence of agency decisionmaking? Aren’t efforts to generalize across decisions arising out of many different agencies and substantive fields misleading? Don’t those decisions often reflect no more than court efforts to deal with distasteful agency action on a case-by-case basis, perhaps masked by appeals to procedural principle? In a word, is it possible to understand these court decisions without understanding the substantive work of the agency? Second, doesn’t concentration upon appellate court decisions mislead the student about what agencies do? The impact of judicial decisions upon agency work may often be slight; and court review may constitute only a small part of the work of lawyers who practice before the agency. Should future lawyers not be given a broader understanding of the many other factors that affect the impact that agency action has upon the world? This casebook represents an effort to preserve the essential virtues of the traditional course while adapting it to meet these objections. The materials are organized along traditional procedural lines, as updated to reflect the vast change that has overtaken this body of law in recent years. At the same time the book uses notes and problems systematically to survey regulation, as broadly conceived to deal not only with prices and entry, but also with health, safety, and the environment. It shows the interaction between substance and procedure; and (particularly in Chapter 8) it describes some of the bureaucratic and political factors at work. Thus, this casebook might be used in two different ways. The teacher who wishes to emphasize the “administrative process” rather than “administrative procedure” might use this book to do so. It will introduce the future practitioner to the substance of much regulation, its interplay with procedural rules, the agency seen as a bureaucratic institution, and the basic steps for obtaining court review. The teacher of the traditional course might teach that course from this book as well, using the substantive notes and comments as supplementary aids. We recommend that those emphasizing regulatory aspects of the book in their courses refer to the Teachers Manual, which is based on our teaching notes. The book’s cases, questions and problems are deliberately organized to elicit in class discussion the points and issues that the Manual contains. The book provides sufficient material for a four-hour course. Those wishing to teach a three-hour course are advised to forgo selected substantive areas of regulation (such as utility rate regulation; food and drug regulation; FTC regulation of false advertising) or procedural topics (such as application of due process; privacy jurisdiction; Freedom of information Act) or a combination thereof.
Publication Date
1979
Edition
1
Recommended Citation
Breyer, Stephen G. and Stewart, Richard B., "Administrative Law and Regulatory Policy" (1979). Faculty Books & Edited Works. 703.
https://gretchen.law.nyu.edu/fac-books-edited-works/703
