98answers

Question One

This question asked you to make federal constitutional arguments regarding a state constitutional amendment that just happened to be word for word identical to an amendment only narrowly defeated (by less than 1%) in the most recent Florida election. The amendment was of course inspired by building contractors and other public-spirited persons who felt a need to meet secretly with their elected representatives and the senior bureaucrats who work for them moments before adjudicative decisions concerning them would be decided by those same politicians and senior bureaucrats (for example, zoning variances) so as to insure that the decision-makers were fully informed about the public's concerns without pesky red tape getting in the way. (They also wanted to void the Florida Open Meetings law that requires legislators to meet on the record when any two or more of them discuss public business including legislation, but that's another story.)

This was supposed to be a pretty easy question. If you thought about Londoner and Bi-Metallic, and the difference between a proceeding in the nature of an adjudication and in the nature of a rulemaking, it shouldn't have been that much of a stretch to argue that the Due Process clause (5^th and 14^th Amendments) probably imposes few if any limits on the contacts of lawmakers when it comes to pending legislation, but does require that they act in a judge-like, more impartial, fashion, when making adjudicative decisions. Just as the judicial process would be fatally undermined by ex parte contacts, so too administrative decisions in the nature of an adjudications, whether rendered by legislators, or by bureaucrats (e.g., a zoning official).

The case regarding federal constitutional due process limits ex parte contacts in rulemaking by bureaucrats is much more open. We didn't have a case that spoke volumes on the due process issue, so I'd have been happy with any sane discussion of the issue, even one that was inspired by the APA decisions, so long as the discussion made it clear you understood that the federal APA did not apply directly to this problem. A good answer could be written saying anything goes on the principle that legislators are ultimately accountable to voters; so too could one suggesting that maybe docketing might be a good idea -- just to be safe from having decisions overturned on due process grounds and to ensure the meaningful judicial review that due process arguably requires. There's also some due process language in Sierra Club v. Costle.

Grades on this question were varied. Many were poor. Several answers treated the entire issue as a question about the APA-usually without any explanation as to why this was relevant to a question that was about the federal constitution (the federal APA does not apply to the states; many states have their own APA's, often modeled on the federal statute, but it's still a state statute and hence trumped by Amendment Z to the state constitution -- in other words, you had no reason at all to consider state statutory issues); others discussed policy issues without much mention of the federal constitution. To these, I was merciless. Similarly, some of you started going on and on and on and on about Chevron. On its own terms, Chevron applies to the relationship of federal courts with federal administrative agencies. It would take considerable argument to extend this rationale to the separation of powers within a state government - and to explain why that was relevant to a potential conflict between a state constitution and the federal constitution. Without such an argument, I was again merciless.

Indeed, some of you seemed very confused about the relationship between the federal constitution, the state constitution, federal law, and state law. This is all basic Con Law I (or informed-citizen-reading-the-newspaper) federalism, but here goes:

Under the supremacy clause, the federal constitutional always trumps everything else. 5^th amendment due process applies only to the federal government, but 14^th amendment due process is identical, and applies to the states.
Whether a federal statute controls over state constitutions and state law depends on (a) whether the constitutional power that authorizes the statute allows this (the commerce clause does) and (b) the text of the statute (Congress does not always exercise its full power). There are no such issues in this problem, since the federal APA by its own terms applies only to federal agencies.
State constitutions always trump state statutes. Since this is an amendment to the state constitution, it doesn't matter what the state APA (if any) might say.
State statutes come last in priority.

Question Two

I thought this was a tough question in that it was hard to follow; but it was an easy question in that there were no right or wrong answers - only poorly argued or supported ones. You could argue Chevron changes everything, you could argue it changes almost nothing (more of the better answers took this tack for some reason); you could base your argument on the extent to which agencies are overturned, or you talk about separation of powers considerations. You could even say the whole thing misses the point and that the important cases constraining the courts are other decisions like Vermont Yankee and Heckler. Some also argued quite successfully that Chevron makes a change, but not as big a change as the quote suggested.

Most people who tackled this question did fairly well, or even very well. I did give an F to the person who regurgitated a lot of case summaries on separation of powers without once explaining what they had to do with the question.

Question Three

I found grading this question to be a depressing experience. People stumbled on the easy stuff.

The case that this most resembled in our casebook was American Horse Protection although some of the most alert noted some similarities to the Animal Legal Defense Fund v. Glickman case in the Ad Law Bulletin (most who did actually exaggerated the similarities since there were more regulations in the Glickman case, but I was impressed anyway). As in the Horse Protection case, the agency has chosen not to issue rules protecting animals that were desired by the plaintiffs. Unlike that case, however, there was no evidence that the agency had devoted any time at all to the issue, and furthermore the amount of effort involved in on-site inspections might be very great. As a result, the outlook for a challenge to the agency's failure to issue a rule that Congress stated it may (not must) issue seems very low indeed. This isn't just a Heckler non-enforcement problem (although if the agency is dragging its feet on purpose, that too looms); rather it's the logically prior problem of whether the agency has a duty to issue rules at all - especially when congress says it may not must or shall. A straight Heckler problem comes along once the agency issues inspection rules and doesn't inspect.

It should go without saying, but alas needs to be said, that if anyone is going to be sued under the statute it is the agency, not the various parties who are mistreating the porpoises. There is nothing in this statute which suggests a private right of action against private parties; to those who nonetheless examined the issue, I gave some credit for stating the tests properly, but more for tying the test to the facts of the case. I gave negative credit to those who asserted a private right of action without argument. I was also unkind to those who talked about "bringing a suit" without ever bothering to specify against whom and on what cause of action(s) just so they could get to the standing issues.

There are indeed serious issues about who might have standing to bring the case against the agency. Bradley has the best case - he seems to fit more or less within the Lujan / Glickman model as he has aesthetic injuries and he presumably would be willing to say he intends to continue climbing litigant peak and spying on porpoises. Having found one plaintiff, you were entitled to stop. Some of you thought that because he was spying from outside his standing was reduced (sometimes on a zone of interests theory). I don't quite see how you get to that, but I didn't take off for it as it showed thought.

Candice Clairvoyant's claim for standing is nonexistent. The courts are not about to recognize claims of psychic power. She lacks the causation required for standing. One could also argue redressability... If the rule were otherwise, anyone could claim psychic powers and get standing. The courts are likely to consider her a psychiatric case, not a plaintiff.

Similarly, Pete, if you will excuse the expression, doesn't have a leg to stand on. Animals, like trees, don't have standing, only their owners do. Similarly, those of you who suggested either adopting Pete, or adopting him as a mascot, got zinged. If I claim to "adopt" your pet, without your agreement, do I get to sue you for how you treat him? Or get whatever standing you may have regarding injuries to that pet? [Note added in May 2000: this comment pre-dated the Elian case....] Of course not. I was pretty horrified, yes horrified, at the number of you who argued Pete had standing in his own right without any hint that this would be a radical change in current law. I did give credit to those who said it would be a radical move but might be worth trying anyway in the slim hope of saving porpoises (you'd lose, but it's reasonable advice to give a client so long as you warn of the low probability of success; the porpoises are probably very sympathetic plaintiffs!).

I was utterly unimpressed by essays that said (accurately) "Bradley has a good claim for standing" or "Candice's claim is weak" without any explanation as to why. Purely conclusory statements like this are darn poor on an in-class exam, and inexcusable in a take-home. I did not give very high grades to people who only discussed the standing issue without discussing the nature of the case you might bring. I did give higher grades to the (rare) people who gave a pessimistic assessment of the merits and then said you don't even need to reach the standing issue. Highest marks to those who did both. Points were there to be had for suggesting other things you could do, like petitioning for a rulemaking...and more points for not being too optimistic about the likely outcome.

Some of you professed to find a non-delegation to private parties problem in the agency's reliance on standards that appeared in professional journals. I don't think that argument would work today, but I gave credit for addressing the issue whichever side you were on. I didn't give many points, however, since if this argument works, the statute gets struck down, and the porpoises are even worse off than they are now - not what your client wants!

While I can see the argument that reliance on third party journals - which change over time - might be a delegation-to-private-parties problem (but no more, I'd say than "best attainable" standards that are clearly ok), I couldn't see the argument (that more than one of you made!) suggesting that delegating the issue of porpoise protection to the Secretary was just "too broad". Compared to all the other things the government does? Really?