Stephen G Breyer - Administrative Law and Regulatory Policy: Problems, Text, and Cases

Administrative Law
and Regulatory Policy

EDITORIAL ADVISORS

Rachel E. Barkow

Segal Family Professor of Regulatory Law and Policy

Faculty Director, Center on the Administration of Criminal Law

New York University School of Law

Erwin Chemerinsky

Dean and Distinguished Professor of Law

Raymond Pryke Professor of First Amendment Law

University of California, Irvine School of Law

Richard A. Epstein

Laurence A. Tisch Professor of Law

New York University School of Law

Peter and Kirsten Bedford Senior Fellow

The Hoover Institution

Senior Lecturer in Law

The University of Chicago

Ronald J. Gilson

Charles J. Meyers Professor of Law and Business

Stanford University

Marc and Eva Stern Professor of Law and Business

Columbia Law School

James E. Krier

Earl Warren DeLano Professor of Law

The University of Michigan Law School

Tracey L. Meares

Walton Hale Hamilton Professor of Law

Director, The Justice Collaboratory

Yale Law School

Richard K. Neumann, Jr.

Professor of Law

Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff

John L. Gray Professor of Law

Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law

Faculty Co-Director, Stanford Criminal Justice Center

Stanford Law School

ASPEN CASEBOOK SERIES

Administrative Law
and Regulatory Policy

Problems, Text, and Cases

Eighth Edition

Stephen G. Breyer

Associate Justice

United States Supreme Court

Richard B. Stewart

University Professor
John Edward Sexton Professor of Law

New York University School of Law

Cass R. Sunstein

Robert Walmsley University Professor

Harvard Law School

Adrian Vermeule

Ralph S. Tyler, Jr. Professor of Constitutional Law

Harvard Law School

Michael E. Herz

Arthur Kaplan Professor of Law

Benjamin N. Cardozo School of Law

Yeshiva University

Copyright 2017 Chloe, Nell, and Michael Breyer; William H. and Paul B. Stewart; Cass R. Sunstein; Adrian Vermeule; and Michael E. Herz

Published by Wolters Kluwer in New York.

Wolters Kluwer Legal & Regulatory U.S. serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (www.WKLegaledu.com)

No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permissions or to request permissions online, visit us at www.WKLegaledu.com, or a written request may be faxed to our permissions department at 212-771-0803.

To contact Customer Service, e-mail , call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to:

Wolters Kluwer

Attn: Order Department

PO Box 990

Frederick, MD 21705

Library of Congress Cataloging-in-Publication Data

Names: Breyer, Stephen G., 1938- author. | Stewart, Richard B., author. | Sunstein, Cass R., author. | Vermeule, Adrian, 1968- author. | Herz, Michael E., author.

Title: Administrative law and regulatory policy : problems, text, and cases / Stephen G. Breyer, Associate Justice, United States Supreme Court; Richard B. Stewart, John Edward Sexton Professor of Law, New York University School of Law; Cass R. Sunstein, Robert Walmsley University Professor, Harvard Law School; Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law, Harvard Law School Michael E. Herz, Arthur Kaplan Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University.

Description: Eight edition. | New York : Wolters Kluwer, 2017. | Series: Aspen casebook series | Includes index.

Identifiers: LCCN 2017000452 | eISBN: 978-1-4548-8805-5

Subjects: LCSH: Administrative lawUnited States | LCGFT: Casebooks.

Classification: LCC KF5402 .B74 2017 | DDC 342.73/06dc23

LC record available at https://lccn.loc.gov/2017000452

About Wolters Kluwer Legal & Regulatory U.S.

Wolters Kluwer Legal & Regulatory U.S. delivers expert content and solutions in the areas of law, corporate compliance, health compliance, reimbursement, and legal education. Its practical solutions help customers successfully navigate the demands of a changing environment to drive their daily activities, enhance decision quality and inspire confident outcomes.

Serving customers worldwide, its legal and regulatory portfolio includes products under the Aspen Publishers, CCH Incorporated, Kluwer Law International, ftwilliam.com and MediRegs names. They are regarded as exceptional and trusted resources for general legal and practice-specific knowledge, compliance and risk management, dynamic workflow solutions, and expert commentary.

To Louis I. Jaffe
Teacher, Scholar, Colleague, Friend

ix

Summary of Contents

x

xi

Contents

(4) Planning

xii

A.L.A. Schechter Poultry Corp. v. United States

xiii

Notes

xiv

5. Presidential Transitions and Midnight Regulations

xv

3. Judicial Review of Agency Factfinding Generally

King v. Burwell

xvi

Citizens to Preserve Overton Park, Inc. v. Volpe

xvii

Asimakopoulos v. Immigration & Naturalization Service

xviii

Leedom v. IBEW

Notes and Questions

xix

Notes and Questions

xx

a. Overview

10. Consequences of the Transformation of Notice-and-Comment Rulemaking

xxi

b. Informal Agency Action

xxii

b. Assessing the Entitlements Doctrine

Notes and Questions

xxiii

(3) Documents Governed by Statutes that Specifically Direct Nondisclosure

xxiv

A. The Separations of Functions Within the Agency

Problems

xxv

Berkovitz v. United States

xxvi

Massachusetts v. EPA

xxvii

Problems

xxviii

Appendix E: Congressional Review Act (5 U.S.C. 801-808)

xxix

Table of Abbreviations

The following acronyms are used throughout the text.