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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 certai

by 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.

torstenvl 8y ago
You seem to misunderstand the applicable law. A procedural due process claim under the due process clause of the Fourteenth Amendment is not only different from a claim under the Administrative Procedure Act, but they cannot apply to the same circumstances: the Fourteenth Amendment due process clause, as opposed to the Fifth Amendment due process clause, applies to the States alone; the Administrative Procedure Act applies to federal agencies.
- ABCLAW 8y ago
  The APA is not raised at all in any of my points and this is a state level matter so the 14th governs. I've linked the brief where you can see that this is a municipal affair in Virginia. But regardless of the jurisdiction of the clause, the point of highlighting that targeted protection against capricious behavior lies elsewhere is to note that the de jure rules in one are are the very principles animating another. We could have the same discussion talking about how elements of German public law are reflected in this case, if we wanted. I'm sure you've seen cases where the judges have asked in oral "But aren't these two tests the same thing?" or "But aren't these two tests the same thing when condition x is satisfied?". Here, x is the forum requirement. Maybe I've missed the point of your post here? Please let me know if I have.
  - deleted 8y ago
    [deleted]
  - torstenvl 8y ago
    This is, quite simply, not an administrative law case. Your position that it is an administrative law case and is governed by the arbitrary and capricious standard is incorrect. Additionally, holding that position while also saying that the APA isn't implicated borders on being self-contradictory. Where exactly do you think the "arbitrary and capricious" standard comes from, if not from the codification of Chevron?
    - ABCLAW 8y ago
      We don't see eye to eye on what the term 'administrative law' refers to in this case. I've tried to be as clear as possible about the difference between "Admin law - the field of law" and "Admin law - the set of principles", but perhaps I've failed. The esteemed RA Macdonald wrote a fantastic article on the precise difference you and I have in our approaches to understanding the law. Here's the paywalled version, but the preview should provide a nice snippet: https://www.jstor.org/stable/42897805?seq=1#page_scan_tab_contents https://www.jstor.org/stable/42897805?seq=1#page_scan_tab_co... In short, you have a narrow view of admin law. I have an expansive view. Both have their advantages, but the confusion between the two, given that they share a title, is unfortunate. To be clear, I explicitly stated the Arbitrary and Capricious standard does NOT apply as a test here, but rather the animating concept behind the standard DOES. I've stated as much no less than three times. To ignore that distinguishing remark to indicate that I'm misusing a test in another field of law when I'm explicitly indicating that there's an analogy between two different fields of law is an unfortunate indicator that my between-meeting scrawl was not well authored. Edit: upon re-reading your post, you seem to believe that Arbitary and Capricious is a term of art that only exists in US administrative law. That's reading the history of that area of law very narrowly (Especially given that the US judiciary agrees see: State Farm and following cases). The APA language literally includes by name the entire french tradition of analysing abus de droit. I won't get into that segment, because I can nerd out for days on that point :).
tptacek 8y ago
That said, the specific protection against arbitrary and capricious decisions is found under the Equal Protections Clause, not the Free Speech clause Wait, it's not me who thinks this case is decided by 1A, it's the appeals court judges who wrote that it does in their decision.
- ABCLAW 8y ago
  Yes. That's what they did. They couldn't address the due process claim because it was poorly argued at first instance and the 'proper' formulation was not addressed as it was not raised earlier. Then they went off and used all the same administrative law principles under different names in the 1A analysis after concluding that a facebook page could be a public forum.

by ABCLAW 8y ago

torstenvl 8y ago

You seem to misunderstand the applicable law. A procedural due process claim under the due process clause of the Fourteenth Amendment is not only different from a claim under the Administrative Procedure Act, but they cannot apply to the same circumstances: the Fourteenth Amendment due process clause, as opposed to the Fifth Amendment due process clause, applies to the States alone; the Administrative Procedure Act applies to federal agencies.

ABCLAW 8y ago
The APA is not raised at all in any of my points and this is a state level matter so the 14th governs. I've linked the brief where you can see that this is a municipal affair in Virginia. But regardless of the jurisdiction of the clause, the point of highlighting that targeted protection against capricious behavior lies elsewhere is to note that the de jure rules in one are are the very principles animating another. We could have the same discussion talking about how elements of German public law are reflected in this case, if we wanted. I'm sure you've seen cases where the judges have asked in oral "But aren't these two tests the same thing?" or "But aren't these two tests the same thing when condition x is satisfied?". Here, x is the forum requirement. Maybe I've missed the point of your post here? Please let me know if I have.
- deleted 8y ago
  [deleted]
- torstenvl 8y ago
  This is, quite simply, not an administrative law case. Your position that it is an administrative law case and is governed by the arbitrary and capricious standard is incorrect. Additionally, holding that position while also saying that the APA isn't implicated borders on being self-contradictory. Where exactly do you think the "arbitrary and capricious" standard comes from, if not from the codification of Chevron?
  - ABCLAW 8y ago
    We don't see eye to eye on what the term 'administrative law' refers to in this case. I've tried to be as clear as possible about the difference between "Admin law - the field of law" and "Admin law - the set of principles", but perhaps I've failed. The esteemed RA Macdonald wrote a fantastic article on the precise difference you and I have in our approaches to understanding the law. Here's the paywalled version, but the preview should provide a nice snippet: https://www.jstor.org/stable/42897805?seq=1#page_scan_tab_contents https://www.jstor.org/stable/42897805?seq=1#page_scan_tab_co... In short, you have a narrow view of admin law. I have an expansive view. Both have their advantages, but the confusion between the two, given that they share a title, is unfortunate. To be clear, I explicitly stated the Arbitrary and Capricious standard does NOT apply as a test here, but rather the animating concept behind the standard DOES. I've stated as much no less than three times. To ignore that distinguishing remark to indicate that I'm misusing a test in another field of law when I'm explicitly indicating that there's an analogy between two different fields of law is an unfortunate indicator that my between-meeting scrawl was not well authored. Edit: upon re-reading your post, you seem to believe that Arbitary and Capricious is a term of art that only exists in US administrative law. That's reading the history of that area of law very narrowly (Especially given that the US judiciary agrees see: State Farm and following cases). The APA language literally includes by name the entire french tradition of analysing abus de droit. I won't get into that segment, because I can nerd out for days on that point :).

tptacek 8y ago

That said, the specific protection against arbitrary and capricious decisions is found under the Equal Protections Clause, not the Free Speech clause Wait, it's not me who thinks this case is decided by 1A, it's the appeals court judges who wrote that it does in their decision.

ABCLAW 8y ago
Yes. That's what they did. They couldn't address the due process claim because it was poorly argued at first instance and the 'proper' formulation was not addressed as it was not raised earlier. Then they went off and used all the same administrative law principles under different names in the 1A analysis after concluding that a facebook page could be a public forum.