4 ms·

You're missing the statement right at the start: "Procedural due process" This is an admin law case (it's also a constitutional case too, so don't feel like th

by ABCLAW 8y ago

You're missing the statement right at the start: "Procedural due process" This is an admin law case (it's also a constitutional case too, so don't feel like that's not a key element and that you missed out - both theories are being analyzed in tandem). Edit: Keenan's portion of the judgement is almost all admin law discussion.

tptacek 8y ago
Isn't "procedural due process" a basic constitutional law term? Having to due with the procedures the government uses to make decisions, rather than the "substantive" due process stemming from a specific right you have under the law? Help me understand where you're coming from. Also, help me to this "arbitrary and capricious" standard you're saying applies here under administrative law. Is it your argument that someone who doesn't work for an agency under powers delegated by a legislature (say: the President, or a Governor) wouldn't be held to these standards? That doesn't sound right at all.
- ABCLAW 8y ago
  Took a while to be able to reply! Some constitutional law is also administrative law. Much in the same way that constitutional law can also be part of the law of contracts or part of the law of torts. Administrative law is the law relating to government due process. The overarching 'bucket' of theory we ascribe to a discussion is purely out of convenience, but the core principles animating the discussion in this case are at the heart of administrative law, hence the use of the term. We could say this ruling was "Social Media Law" and be correct (and this term and grouping would be interesting in certain contexts, too!). In regards to the standard, arbitrary and capricious is a term of art regarding decision-making, referring to some of the worst possible government behavior. Without getting into the details of how admin law works, let's just say arbitrary and capricious behaviour - the hallmark of tyrants - is the big bad that administrative law aims to battle against. The term also refers to a standard of review, but that's more an indication of deference - that the courts won't fight against decisions they don't feel competent to deal with unless they're that bad. To answer the second portion of your question, the limitation on the scope of admin law is government, not the legislature and it's devolved structures. If I had to bet, I'd say the most common use of administrative law falls purely within the judiciary, as all appeals are all functionally administrative reviews of a prior decision.
  - tptacek 8y ago
    I'm looking at syllabi for "Administrative Law" right now, and for instance at the University of Michigan, as top-level "sections", the course breaks down to: 1. what a government agency is 2. administrative adjudication (due process is a sub-bullet under here) 3. rulemaking 4. when and how rulemaking and adjudication is exposed to Article III judicial review 5. the scope of judicial review for administrative actions 6. how agencies relate to the executive Under that rubric, this doesn't look like an "administrative law" dispute except that it involves "due process", but then, if that makes something "administrative law", wouldn't lots of cases that aren't conventionally understood as admin law cases be admin law cases? On the other hand, there are no ALJs involved here, no county agency rule was drafted determining how Facebook was to be moderated, no question came up as to whether the County Supervisor's moderation was an exercise of powers granted to executive agencies explicitly by the Louisiana Constitution (do they have one? or is it all still French law there?), &c &c. I'm nerding out here, if it isn't clear; I don't think this debate is vital the the outcome of thread. :)
    - ABCLAW 8y ago
      Nerd away. I love it. Administrative law, the 101 course, is not the same as Administrative law, the body of legal knowledge and principles, but they're certainly related. The case in question has a very specific Administrative law segment. It also has principles which derive out of Administrative law which animate the constitutional analysis. These two are distinct and the difference isn't immediately clear. The specific Administrative law segment asks: what policy exists regarding social media use at the relevant level of government and should that body of government which the defendant represents be held to account on the basis that he decided on the policy when he went forward with the banning? The court decided he was not making policy because he was upset and reversed the ban within a day - and perhaps as importantly - refused to revisit the issue because the magnitude of the lower court error on this point was not sufficient to hit the standard of review. The constitutional law portion of the decision is animated by Administrative law principles. Here's a brief sampling: Page 17-21 of the decision boil down to "was he acting as the government?" which is one of the big questions you see illustrated in the syllabus contents you copied. The discussion on page 29 regarding the public/private brightline rule advanced by the defendant is emblematic of the 'is the decision arbitrary?' question. All of the examples used are more about the quality of decisions than the type of forum. So, despite the discussion being framed in constitutional fora terms, it is functionally an administrative law analysis of capricious decisions. The discussion on Page 33 is even more on point. Viewpoint discrimination is titled example of behaviour that is, by definition, arbitrary and capricious. That said, the specific protection against arbitrary and capricious decisions is found under the Equal Protections Clause, not the Free Speech clause. Different tests operate in both areas, but once you get past the public/private forum discussion, the case then turns to a discussion about the quality of the decision, and that's where we see all these Administrative law ideas percolate up. Edit: Making this less stream-of-thoughty. Edit: There's actually an unconsidered Admin law claim that wasn't addressed because it wasn't brought up at first instance discussed briefly on pg. 35. Looks like someone cited the wrong test at first instance and isn't being allowed to fix it now.

by ABCLAW 8y ago

tptacek 8y ago

Isn't "procedural due process" a basic constitutional law term? Having to due with the procedures the government uses to make decisions, rather than the "substantive" due process stemming from a specific right you have under the law? Help me understand where you're coming from. Also, help me to this "arbitrary and capricious" standard you're saying applies here under administrative law. Is it your argument that someone who doesn't work for an agency under powers delegated by a legislature (say: the President, or a Governor) wouldn't be held to these standards? That doesn't sound right at all.

ABCLAW 8y ago
Took a while to be able to reply! Some constitutional law is also administrative law. Much in the same way that constitutional law can also be part of the law of contracts or part of the law of torts. Administrative law is the law relating to government due process. The overarching 'bucket' of theory we ascribe to a discussion is purely out of convenience, but the core principles animating the discussion in this case are at the heart of administrative law, hence the use of the term. We could say this ruling was "Social Media Law" and be correct (and this term and grouping would be interesting in certain contexts, too!). In regards to the standard, arbitrary and capricious is a term of art regarding decision-making, referring to some of the worst possible government behavior. Without getting into the details of how admin law works, let's just say arbitrary and capricious behaviour - the hallmark of tyrants - is the big bad that administrative law aims to battle against. The term also refers to a standard of review, but that's more an indication of deference - that the courts won't fight against decisions they don't feel competent to deal with unless they're that bad. To answer the second portion of your question, the limitation on the scope of admin law is government, not the legislature and it's devolved structures. If I had to bet, I'd say the most common use of administrative law falls purely within the judiciary, as all appeals are all functionally administrative reviews of a prior decision.
- tptacek 8y ago
  I'm looking at syllabi for "Administrative Law" right now, and for instance at the University of Michigan, as top-level "sections", the course breaks down to: 1. what a government agency is 2. administrative adjudication (due process is a sub-bullet under here) 3. rulemaking 4. when and how rulemaking and adjudication is exposed to Article III judicial review 5. the scope of judicial review for administrative actions 6. how agencies relate to the executive Under that rubric, this doesn't look like an "administrative law" dispute except that it involves "due process", but then, if that makes something "administrative law", wouldn't lots of cases that aren't conventionally understood as admin law cases be admin law cases? On the other hand, there are no ALJs involved here, no county agency rule was drafted determining how Facebook was to be moderated, no question came up as to whether the County Supervisor's moderation was an exercise of powers granted to executive agencies explicitly by the Louisiana Constitution (do they have one? or is it all still French law there?), &c &c. I'm nerding out here, if it isn't clear; I don't think this debate is vital the the outcome of thread. :)
  - ABCLAW 8y ago
    Nerd away. I love it. Administrative law, the 101 course, is not the same as Administrative law, the body of legal knowledge and principles, but they're certainly related. The case in question has a very specific Administrative law segment. It also has principles which derive out of Administrative law which animate the constitutional analysis. These two are distinct and the difference isn't immediately clear. The specific Administrative law segment asks: what policy exists regarding social media use at the relevant level of government and should that body of government which the defendant represents be held to account on the basis that he decided on the policy when he went forward with the banning? The court decided he was not making policy because he was upset and reversed the ban within a day - and perhaps as importantly - refused to revisit the issue because the magnitude of the lower court error on this point was not sufficient to hit the standard of review. The constitutional law portion of the decision is animated by Administrative law principles. Here's a brief sampling: Page 17-21 of the decision boil down to "was he acting as the government?" which is one of the big questions you see illustrated in the syllabus contents you copied. The discussion on page 29 regarding the public/private brightline rule advanced by the defendant is emblematic of the 'is the decision arbitrary?' question. All of the examples used are more about the quality of decisions than the type of forum. So, despite the discussion being framed in constitutional fora terms, it is functionally an administrative law analysis of capricious decisions. The discussion on Page 33 is even more on point. Viewpoint discrimination is titled example of behaviour that is, by definition, arbitrary and capricious. That said, the specific protection against arbitrary and capricious decisions is found under the Equal Protections Clause, not the Free Speech clause. Different tests operate in both areas, but once you get past the public/private forum discussion, the case then turns to a discussion about the quality of the decision, and that's where we see all these Administrative law ideas percolate up. Edit: Making this less stream-of-thoughty. Edit: There's actually an unconsidered Admin law claim that wasn't addressed because it wasn't brought up at first instance discussed briefly on pg. 35. Looks like someone cited the wrong test at first instance and isn't being allowed to fix it now.