Administrative Law Professor Wells For 9/29, we begin discussing agency authority to adjudicate. Skim Crowell v. Benson (posted) and read pp. 172-80 in the textbook. While reading these materials, keep in mind the following questions: 1. Crowell is necessary background but we will focus on Schor. 2. Does Article III allow any arm of the government other than the judiciary to exercise judicial power? 3. What test does Schor use to determine whether agency adjudications violate Article III? Is Schor a workable approach to determining when agencies can adjudicate consistent with Article III? To what extent does Schor still cling to aspects of Crowell. 4. According to Schor, the purposes underlying Article III are critical to assessing the constitutionality of agency adjudications? What are the purposes of Article III courts? When do agency adjudications threaten those purposes? 5. Consider the following hypothetical which helps us to put Schor into action. Does the agency’s action violate the Court’s standard in Schor? The EPA requires companies that incinerate hazardous waste to get a permit. To get a permit, a company initially applies to the EPA section in the Region where the incinerator is located. If the Region denies the permit, the company can appeal to an Environmental Appeals Board (“EAB”), an administrative tribunal within the EPA. If the EAB upholds the denial, the company can seek review by the Administrator of the EPA. If the Administrator upholds the denial, the company may seek judicial review in an Article III court. Hazardous Waste Management, Inc. (“HWM”) was denied an incinerator permit at all levels mentioned above. HWM filed a lawsuit in federal court challenging the denial and claiming that the scheme violates Article III by unconstitutionally delegating judicial power to non-article III entities (Region, EAB, and Administrator). How will this come out under Schor? 6. Try to get a handle on the Atlas Roofing case and the right to jury trial when agencies adjudicate. To what extent does Crowell’s public right/private right distinction play a role in the Court’s conclusion?
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