A student asks,
Will we be taking our final using examsoft or will we be able to use Word and print out the answers and turn them in?
No examsoft for this exam. You’re on your own. Cut and past to your heart’s desire…up to the length limit. I do not read beyond the length limit. (And, amazingly, every year one or more people write an extra page or three.)
I have selected (and in many cases modified) the following student-written exam questions. One or more will appear in some form on your exam:
Question A
The FDC Act Amendments of 2007 allow the FDA to ban the sale of any product previously licenced by the FDA, when the FDA determines, following a hearing on the record, that the product causes “side effects detrimental to general health and wellness.”
In March 2008, the FDA held a hearing, presided over by ALJ Schlosser, concerning whether to prohibit the sales of X-Treme Muscle Growth supplements. After hearing testimony and reviewing the evidence, Judge Schlosser is still unclear about some of the scientific findings and also would like further clarification about the phrase “side effects detrimental to general health and wellness” because he thinks many products exists that may have some undesirable side effect.
Who can Judge Schlosser properly consult to help him make his decision?
Question B
The Spider Parts Awareness (SPA) Act of 2001 requires all manufacturers and purveyors of cooked and/or prepared food products to report annually to the Food and Drug Administration (FDA) the quantity of spider parts in each of its products. The Act further provides that the FDA shall publish these reports to the public. Failure to report is punishable by fines paid to the government. The SPA also authorizes citizen suits against companies found in violation of the SPA, and awards the amount of $1 to parties that successfully recover damages on behalf of the government.
Diamond Corporation produces hot dogs. Diamond Corporation did not report the amount of spider parts in its hot dogs from 2001 to 2007, but started reporting the amount of spider parts after a lawsuit under the SPA was filed in January 2008 by the Hot Dog Lovers (HDL) Association. The lawsuit originally sought both damages and an injunction against Diamond Corp.
HDL describes itself as a group devoted to ensuring the quality of hot dogs sold to American consumers and claims a special interest in hot dogs free of excessive spider parts. Members of HDL ate Diamond Corp hot dogs from 2001-2007. Newspaper articles report that HDL members are “alarmed” that the amount of spider parts reported by Diamond Corp for 2008 was ten times the industry average. As a result, the articles suggest, HDL members have stopped eating Diamond Corp hot dogs and claim they would not have eaten Diamond Corp hot dogs if they had been aware of the level of spider parts.
Outline and evaluate Diamond Corporation’s defense(s) in the ongoing suit filed by HDL.
Question C
Recently the State of Alaska’s Department of Welfare (DOW) began to make changes to its welfare system. After following all the appropriate rulemaking procedures, DOW issued a new rule on the eligibility to receive “Class A” benefits.
Class A benefits entitle recipients to receive food stamps, a housing allowance, as well as health benefits for themselves and their dependant children.
The rule states:
Class A Benefits
(I)
a. An individual who applies for “Class A” benefits automatically qualifies when they:
1. Are the sole parent/guardian of at least two children under the age of 18, AND
2. Are employed by or actively seeking employment from a state agency
b. The DOW will help persons meeting the conditions of subsection (I)(a)1 who have an annual income of less than $5,000 find employment with an Alaskan government agency . Terms of the employment shall left to the discretion of the Head of the hiring department.
(II)
At any time when DOW finds an individual fails to meet the requirements of (I)(a) above, the benefits shall be immediately terminated. After termination DOW must send a letter to the individual stating why benefits were terminated. After termination an individual may request a hearing to appeal.
(III)
a. The benefits under this chapter include
1. food stamps,
2. health care, and
3. housing allotment of
A. one hundred dollars,
b. These benefits shall continue for no longer than 3 years
c. Pending appeal of the termination of, or reapplication for Class A benefits an individual will automatically receive the minimum benefits they qualify for.
d. DOW may exempt an individual from any section of this rule when it sees fit.
Jan Smith, a mother of three, was one of the first single mothers in Alaska to receive benefits under the Rule. She has two children and worked as an at will employee for the Alaskan State Education Department (SED). After one year of employment she was fired. She was given no explanation for her termination.
The Head of SED immediately contacted DOW and informed them that Ms. Smith was no longer employed with a state agency. DOW sent Ms. Smith a letter stating she no longer complied with Section (I)(a), and her benefits were terminated. Although she has lost her Class A benefits, Ms. Smith is still eligible to, and does, collect food stamps under another DOW rule.
Ms. Smith comes to your law firm asking for help. She claims her other benefits should not be terminated because after she was fired from DOW she was actively seeking employment. Since the loss of her job and termination of her benefits she has been unable to pay the rent she has been threatened with eviction. She has also been unable to pay for her children’s doctor visits and the prescriptions they need. What if any claim(s) does she have?
Question D
A group of parents sued the federal Department of Education for the lack of accurate data regarding the racial and economic make-up of schools in New York State.
The plaintiffs included African-American and Hispanic-American parents resident in New York.
By statute the Department of Education is charged with providing states with data adequate to enable the state to make accurate policy and legislative decisions on how to further integrate their public school systems.
DOE uses particular consulting firms to collect the data. It has used the same firms for the past five years, renewing their contracts on an annual basis.
The plaintiffs claim that Axol, one of the data collection consulting firms used by the Department of Education, has a history of being extremely racially biased. Indeed, there are federal court decisions in three other states in which the court has found as a fact that Axol’s biased data resulted in the state making ineffective or erroneous decisions.
You work for the General Counsel of Axol, who has asked for a memo evaluating the likely claims and defenses in this case. She would also like to know, very briefly, if it is in Axol’s interest to get involved in this dispute in any way, and if so how it should do that.
Question E
Broadway is going through a rough time. Its shows have been getting panned by the critics and, worse, some world newspapers are actually suggesting that London has the best plays in the world.
The National Endowment for the Arts (NEA), a federal agency, currently runs two of the 15 shows on Broadway – Dirty Rotten Scoundrels and Avenue Q.
The NEA decides it must act to preserve Broadway’s iconic status by keeping only its veteran employees during these tough times. Thus, the NEA decides to fire every actor and actress in its shows that have not been on the Broadway circuit for at least five full seasons.
Jeff is an actor in Dirty Rotten Scoundrels (one of the shows run by the NEA). He has just finished his first full season on Broadway. He had previously signed a one-year contract with the NEA, of whom the director head told him that if the show sells out more than 75% of the time, he could expect to be rehired for the next season. Although his show sold out 90% of the time, Jeff is now being let go due to the new NEA policy.
Does Jeff have a valid claim against the government? Why?
Question F
Congress passes a statute stating, “The EPA shall take action to better protect and care for national wildlife located in wildlife preserves and to promote the interests of American citizens and organizations in viewing and observing such wildlife in their habitats.”
Subsequently, the EPA issues a rule requiring “all organizations which house or maintain animals to issue semi-annual reports documenting the animals’ well-being and living conditions.”
Then, later, the EPA replaces its initial rule with another rule which states, “National Parks and Historic Sites are required to issue semi-annual reports detailing the well-being and living conditions of animals under their care and control.”
On behalf of her organization, Protect Animals in Zoos (PAZ), Jane Doe wants to sue the EPA for failing to follow its congressional mandate through its exclusion of metropolitan zoos from its rule.
Writing a memo for Ms. Doe, discussing the most relevant and important obstacles she will face in bringing an action and winning her case. Explain how she should attempt to resolve these issues based on the existing law.
The registrar informs me that:
Room F109 has been reserved for on Monday, December 1st from 9:30a – 10:50a for the Admin Law Review Session
Please note that this session is 100% optional.
Also, as I’ll have written the exam by then (probably), the ground rules are:
* I’ll answer your questions fully
* But I’m not volunteering anything – you have to ask questions
Here’s a link (07exam-student-answers) to four student answers to last year’s exam: two for question two, and two for question three.
Here’s a link (07fall-exam-final) to last year’s exam. I’ll be using this for the upcoming discussion of what makes good and bad answers.
NEVER NEVER rely on the NPRM as the final rule (but always check to see what changed from the NPRM if there’s any chance that could be relevant).
Politico on the repeal of so-called “midnight regulations”:
Congressional Democrats are eyeing a little-known, Clinton-era law as a way to reverse Bush administration midnight regulations — even ones that have already taken effect.
It’s a move that would undermine the White House’s attempt to finalize its energy and environmental regulations by November so that Barack Obama couldn’t undo them after he’s sworn in as the 44th president on Jan. 20.
“Fortunately, [the White House] made a mistake,” said a top Senate Democratic aide.
Last May, White House chief of staff Joshua Bolten instructed federal agency heads to make sure any new regulations were finalized by Nov. 1. The memo didn’t spell it out, but the thinking behind the directive was obvious. As Myron Ebell of the conservative Competitive Enterprise Institute put it: “We’re not going to make the same mistakes the Clinton administration did.”
President Bill Clinton finalized regulations within 60 days of the 2001 inauguration, meaning Bush could come in and easily reverse them.
It could take Obama years to undo climate rules finalized more than 60 days before he takes office — the advantage the White House sought by getting them done by Nov. 1. But that strategy doesn’t account for the Congressional Review Act of 1996.
The law contains a clause determining that any regulation finalized within 60 days of congressional adjournment — Oct. 3, in this case — is considered to have been legally finalized on Jan. 15, 2009. The new Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate.
In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress.
A senior aide on the Senate Environment and Public Works Committee, which is chaired by Sen. Barbara Boxer (D-Calif.), was familiar with the CRA, acknowledging that it is an option the committee is considering.
House Global Warming Committee Chairman Ed Markey (D-Mass.) is also looking at it. “On egregious rule-makings that would have a detrimental effect on energy and environmental policy, [the CRA] speeds up the process for rescinding the bad rule,” said Markey spokesman Eben Burnham-Snyder. “It’s something Markey is seriously looking into.”
Congress last used the CRA in 2001 to overturn a Clinton administration rule that set new requirements for ergonomic work spaces.
Targets of the CRA may include a rule to allow federal agencies to determine on their own whether their policies will threaten endangered species, rather than requiring them to go through the U.S. Fish and Wildlife Service for approval. Regulations opening land in the West to oil shale development and mountaintop removal could also be on the block.
“We are not rushing regulations through at the last minute. We are simply continuing our responsibility of governing until the end of the president’s term,” said White House spokesman Carlton Carroll.
“As for the Congressional Review Act,” he said, “Congress has tools they can use now to overturn regulations, just as they do at all other times, but that doesn’t discourage us from continuing our responsibility to govern.”
Aides to Speaker Nancy Pelosi (D-Calif.) and Senate Majority Leader Harry Reid (D-Nev.) said that a decision has yet to be made regarding the strategy for dealing with Bush administration regulations.
Even though the CRA can’t be filibustered, legislative lifting is generally more difficult than executive action. “There’s a lot that the president can do using his executive authority without waiting for congressional action, and I think we’ll see the president do that,” John Podesta, who is helping direct Obama’s transition team, said on “Fox News Sunday.”
Jerry Brito, a senior research fellow at the Mercatus Center at George Mason University, closely follows midnight regulations. He said he would advise the Obama administration to package all of the regulations it wants overturned into one large vehicle to be voted up or down.
“That would solve the collective-action problem, and it solves the pet- project problem. It would sort of limit special pleading,” he said, noting that each new regulation benefits someone specific who will fight hard to keep it. Lumping them together dissipates that energy.
Carlson v. Green, 446 U.S. 14, 21-22 (1980):
[O]ur decisions, although not expressly addressing and deciding the question, indicate that punitive damages may be awarded in a Bivens suit. Punitive damages are “a particular remedial mechanism normally available in the federal courts,” Bivens , 403 U.S., at 397, 91 S.Ct., at 2005, and are especially appropriate to redress the violation by a Government official of a citizen’s constitutional rights. Moreover, punitive damages are available in “a proper” § 1983 action, Carey v. Piphus, 435 U.S. 247, 257, n. 11, 98 S.Ct. 1042, 1049, n. 11, 55 L.Ed.2d 252 (1978) (punitive damages not awarded because District Court found defendants “did not act with a malicious intention to deprive respondents of their rights or to do them other injury”),FN9 and Butz v. Economou, suggests that the “constitutional design” would be stood on its head if federal officials did not face at least the same liability as state officials guilty of the same constitutional transgression. 438 U.S., at 504, 98 S.Ct., at 2910.
The following message is from Janet Stearns, the Dean of Students
Dear Students:
Every semester our office administers Faculty-Course Evaluations to all students. These evaluations are very important for many reasons. They provide the faculty with important feedback on how to make the course better. They are reviewed by the Deans in making renewal decisions about visiting or adjunct faculty or making tenure decisions on permanent faculty. In addition, your feedback is very helpful to other students who may wish to take these courses in the future.
We have traditionally done these evaluations on paper. We are testing this semester an online service for teaching evaluations. The questions and formats are exactly the same as the print evaluations. However you can type your answers and also the responses can be more efficiently transmitted and tracked by the faculty and administration. There are many benefits to this online system including our commitment to paper reduction and creating a Greener University.
The following classes are part of this semester’s test administration:
Administrative Law/ Froomkin
Civil Procedure/ Masinter (Both Sections)
Contracts/ Widen
Substantive Criminal Law/ Barnes
National Security Law/ Barnes
We want to encourage you to complete the online evaluations at home by accessing the MYUM system. Please note that you will not have class time to complete this evaluation and so we are relying you’re your cooperation to do this at home. While I have no idea of what individual students write in response to a course, I am able to track overall participation rates. I am committed to making every effort to ensuring maximum participation so that we can capture this valuable feedback about our courses and teachers and work together to make our law school the best that it can be. The faculty will be evaluating the overall results of this online course evaluation pilot test to determine if we will use this online method for all faculty-course evaluations.
You will have until November 21 to complete the evaluations online. The system will shut down on November 21. The faculty will not have access to their evaluations until after grades have been submitted and posted.
If you have any questions or concerns about the online teaching evaluations, please do not hesitate to contact me.
Best regards,
Janet Stearns
Dean of Students
University of Miami School of Law
Tel: 305-284-4551
email: jstearns@law.miami.edu
During the chase of a suspect, Fred — a federal police officer — lets his trained dog, “K-9″, off his leash in order to have the dog chase the suspect. During the chase, “K-9″ bites “Manny,” an innocent bystander.
Can Manny sue Fred? K-9? Anyone else?
