Administrative Law, Spring, 2006, Professor Rogers
Here are short responses to some student review questions submitted by e-mail. Responses are intended to meet the thrust of the students' questions, and not to be a thorough or complete analysis. To submit a question, click here.
The following questions, in reverse order, were received and answered during the Reading Period.
Question 4. If an organic statute required "substantial evidence" standard of review for informal notice and comment rulemaking (like AFL-CIO v. Marshall) but it was truly just informal rulemaking (e.g., no "hybrid" hearing like in the Marshall case), where would the reviewing court look for the record or the "substantial evidence"?
Response: Arguably, it would have to look only at the notice, the comments, the responses to the comments, and the the concise general statement of basis and purpose. A court might infer, however, from the heightened scope of review, additional procedural requirements to make that review effectively possible. See the carryover paragraph on pp. 193-94 of the casebook.
Question 3. What is Negotiated Rulemaking?
Response: See casebook at 249-52.
Question 2. Seacoast, "on the record" and the right to cross: do you have to have a statutory right to cross in a hearing? My class notes are fuzzy on this matter.
Response: If the triggering language for formal adjudication is found in the organic statute (as it was in Seacoast), then parties have a right to cross-examination of witnesses "as may be required for a full and true disclosure of the facts." See 5 USC § 556(d), fifth sentence.
Question 1. I am confused on the Zone of Interests prudential standing requirement and how the legal interests test plays in. From my notes it appears that they are essentially the same thing and I cannot figure out the answer based on any supplement.
Response: In Data Processors the Supreme Court "rejected" the legal interest test and substituted the zone of interest test. Both however look to the statute or other legal provision that is the basis for the plaintiff's claim. Applying the legal interest test presumably would have meant no standing in Data Processors. So the new test is clearly more generous. Plaintiff need not be within the class of persons protected by the legal basis for plaintiff's claim, but only "arguably" within the "zone" of that interest. Just how much of a loosening of standing law is the question for which we examined Air Carriers and NCUA.