221.8 sec. 001 - Statutory Implementation: Agency Policymaking through Regulation (Fall 2022)
Instructor: Jolina Cuaresma (view instructor's teaching evaluations - degree students only)
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Grading Designation: Credit Only
Mode of Instruction: In-Person
Tu 6:25 PM - 8:15 PM
Location: 🔒 Log-in to view location
From August 23, 2022
To September 27, 2022
Course End: September 27, 2022
Class Number: 31948
Enroll Limit: 16
As of: 02/17 06:39 AM
Much of first-year law school aims to provide students with an understanding for how common law evolves and the central role that courts play in governing society. Unless students take advanced courses in Public Law & Policy such as Administrative Law, they may graduate with the impression that the judicial system is best equipped to resolve societal problems and address public policy concerns. That's not necessarily the case.
To be sure, even Administrative Law fails to provide a complete picture. It is taught using court opinions, again casting judges in the lead role. There is little focus on the inner workings of the modern administrative state that is tasked with implementing Congress’ statutory programs. With emerging technologies presenting intractable problems (e.g., consumer privacy), understanding how agencies inform affected parties of the scope of their rights and responsibilities under a statute is critical to providing clients strategic advice that furthers their goals.
This seminar's objective is to provide students with insight into what happens after a bill becomes law and how an agency's enabling statute establishes the scope of its quasi- legislative, executive, and judicial powers. Students will decide for themselves whether statutory implementation inevitably results in policymaking. Does the mere choice of selecting a regulatory tool⏤for example, bringing an enforcement action or conducting a notice and comment rulemaking⏤reflect a policy decision? My goal in designing this class is for students to have the opportunity to develop a more informed view about the modern administrative state by giving the lead role to the agency attorneys who advise on actions an agency may (or should) take.
While the course introduces students to the panoply of administrative powers, it centers on rulemaking. This course provides students with an opportunity to gain fundamental lawyering skills in drafting and negotiating regulatory language in any area of law. To give students practical rule writing experience, the course will focus on student loans and will be taught against the backdrop of the Consumer Financial Protection Bureau’s authority under Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Specifically, students will learn how to draft regulations that address an existing student loan servicing problem. But because agencies do not operate in a vacuum, we will discuss politics and how the party in control of the political branches impacts which regulatory tools are more often used.
Before the first class, students should read the following.
· a href=https://www.yalejreg.com/nc/d-c-circuit-review-reviewed-i-vote-for-chenery-i-not-chenery-ii/“D.C. Circuit Review - Reviewed: ‘I vote for Chenery I, not Chenery II,’”/a a blog post from Yale Journal on Regulation.
· Sections of the complaint in a href=https://files.consumerfinance.gov/f/documents/201701_cfpb_Navient-Pioneer-Credit-Recovery-complaint.pdfCFPB v. Navient/a pertaining to alleged payment processing errors (97-112, 134-137, and 166-171). The exam is a final paper containing parts of a draft regulation addressing payments processing.
Class will meet for the first 7 weeks of the semester only. There will be a make-up class held on Friday, August 26th from 2:30PM-4:20PM
Attendance at the first class is mandatory for all currently enrolled and waitlisted students; any currently enrolled or waitlisted students who are not present on the first day of class (without prior permission of the instructor) will be dropped. The instructor will continue to take attendance throughout the add/drop period and anyone who moves off the waitlist into the class must continue to attend or have prior permission of the instructor in order not to be dropped.
None. However, this course is better suited for students who have previously taken or are concurrently taking (i) structural Constitutional Law or (ii) Administrative Law. If you have not taken or are not concurrently taking either, please read Jared P. Cole & Daniel T. Shedd, Administrative Law Primer: Statutory Definitions of “Agency” and Characteristics of Agency Independence, Cong. Research Service (May 22, 2014).
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