Course - Law
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Overview

Notice and comment rulemaking is one of the processes most used by administrative agencies at all levels of government to promulgate legally binding rules. This workshop provides an opportunity to learn, review, and strengthen understandign of the administrative law principles applicable to notice and comment rulemaking by participating in actual rulemaking proceedings. Emphasis will be placed on how the legal theoretic underpinnings of each administrative law principle applicable to notice and comment rulemaking and the potential for judicial review of agency rules informs the effective formulation of comments by participants in the rulemaking process. Ongoing rulemaking proceedings will be identified for participation, comments on matters of interest will be formulated in an iterative review process, and opportunities will be provided to submit comment to the regulatory agencies.

The workshop will be open to any 2Ls, 3Ls, and LLM students because it will provide sufficient background to the legal principles to be applied. This course will reinforce and deepen the undrstanding and enhance skills relevant to environmental law and administrative law.

Overview of topics to be covered:

  • Statutory creation and roles of federal agencies
  • Establishment of notice and comment rulemaking in the Administrative Procedure Act (APA)
  • Procedue for participating in notice and comment rulemaking
  • Lessons to be learned from judicial reviews of agencies' rules either upheld or vacated
  • How to find ongoing notice and comment rulemakings of potential interest
  • Identification of notice and comment rulemakings of interest
  • Determination o fthe types of comments to be submitted
  • Application of lessons learned to the formulation of comments
  • Submittal of comments to agency conducting notice and comment rulemaking
  • Scholarly and practice-oriented examination of the principles and legal precedents important to understanding and participating in notice and comment rulemaking
  • Leading cases illustrating applications of legal principles to challenges to administrative agencies' rules
  • Federal Register notices for candidate rules for participation in ongoing rulemaking proceedings
  • Administrative agencies' rules implementing either the Federal APA or its State/Local equivalnt
 
Materials

No books required.

 
Course Format  
Written Assignments

Two written products will be required instead of a final examination. One prduct will be a finalized set of comments suitable for submittal to an agency conducting a notice and comment rulemaking proceeding. The other product will be each student's explanation of the thought process used to determine why and how to participate in the rulemaking chosen. That explanation will included: (1) why the particular rulemaking was of interested both sustantively and legally; (2) what agency action affecting the proposed rule was hoped to be obtained by submitting comments; (3) how the legal strategy likely to be effective was identified and developed; and (4) the substantive and legal research conducted to support the comments. The rules acceptable for student participation will be sufficiently complicated so as to require the two written products to have a cobined length of at least twenty pages. Each student will determine whether to actually submit those comments to the administrative agency.

 
Type of Exam

None

 
Basis for grading

Grading will be based in substantial part on the apparent legal effectiveness of the finalized set of comments. Workshop participation also will be considered. Positions taken in finalized comments will be considered only to the extent that they are supported by legal and regulatory arguments. Philospohical orientation will not bbe a factor in the grade.

 
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