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.

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):

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.
 

Past exams and model answers are available on the world wide web at http://www.law.miami.edu/~froomkin/adlaw/exams.htm