Litigating at Regulatory Agencies: Roles, Skills and Strategies (PROJECT-BASED PRACTICUM)
J.D. Practicum 1169
| 5 credit hours
In a project-based practicum course, students participate in a weekly seminar and work on a project under the supervision of their professor (and in this case, an outside client). This project-based practicum course will focus on regulatory agency litigation. Students will participate in a two hour/week seminar and carry out 15 hours/week of project work under the direction of the course professor.
Regulatory litigation covers a diverse terrain: from mergers of telecommunications monopolies to benefits for the disabled; from market manipulation by banks to fraud by physicians. It occurs at hundreds of administrative agencies, federal and state, employing thousands of lawyers in diverse roles. They organize proceedings, shape and draft expert testimony, conduct discovery, present and cross-examine expert witnesses, write briefs, draft opinions, defend or attack commission decisions in court, bring or defend enforcement actions, and shape regulatory legislation. Despite this diversity, all regulatory litigation should achieve the same outcome: an agency decision that serves a statutorily-defined public interest and holds up in court. This practicum course teaches students how to be effective participants in regulatory litigation, both as advocates for parties and as advisors to decision-makers. We will address two major questions: (1) What skills are required? and (2) How can lawyers shape the regulatory litigation process to serve the public interest rather than parties' narrow private interests? We will address these questions through a seminar component and a project component, each informing the other.
SEMINAR: The seminar component will study the complete record of a litigated proceeding; if possible, one pending during the semester. The spring 2015 and spring 2016 classes dealt with the proposed acquisition of the local electric utility Pepco by the holding company Exelon, reviewed by the D.C. and Maryland regulatory agencies. For each stage in the proceeding (application, interventions, discovery, pre-filed testimony, design of hearing procedures, cross examination, settlements, briefing, deliberations, order-writing and judicial review), students will critique actual filings, and prepare their own versions in a simulated context (e.g., preparing discovery questions, conducting cross examination and presenting oral argument during judicial review). Further, using examples from other regulatory proceedings, we will compare litigation procedures and practices, with attention to the centrality of the evidentiary record, parties’ and the agency’s vulnerability to interest group pressures, procedural efficiency and fairness, and the tension between short-term gains and the long-term public interest. Other readings will give insights into the strengths and weaknesses of agency decision-makers—the knowledge of which is essential to litigation success. Practitioners will visit class to answer student questions about technique and strategy.
PROJECT WORK: The project component will consist of one or more of the following activities: (a) working directly with a regulatory litigator or decisionmaker in a pending regulatory action; (b) preparing for an agency client a 15-20 page analytical paper that offers solutions to some suboptimality in regulatory litigation procedure; and (c) observing and commenting on some aspect of a current adjudication at the Federal Energy Regulatory Commission (or other regulatory agency selected by the student), applying the skills and principles studied in class.
Prerequisite: J.D. students must complete the required first-year program prior to enrolling in this course (part-time and interdivisional transfer students may enroll prior to completing Criminal Justice, Property, or their first-year elective).
Students may not concurrently enroll in this practicum course and a clinic or another practicum course. Students may concurrently enroll in this practicum course and an externship.
This practicum course is open to LL.M. students, space permitting. Interested LL.M. students should email Louis Fine (firstname.lastname@example.org) to request admission.
This practicum course is suitable for evening students with flexible work schedules. Project work that must be conducted during business hours will include (1) four phone interviews of 30-60 minutes (2) attendance at hearings of the Federal Energy Regulatory Commission (or other regulatory agency selected by the student), for no more than two days (although students may not be able to control when those two days occur) and (3) two 30-minute meetings with the professor during the semester.
This is a five credit course. Two credits will be awarded for the two-hour weekly seminar and three credits for approximately 15 hours of project work per week, for a minimum of 11 weeks. The seminar portion and the project portion will receive a single combined grade. (Note: Students’ work on the final paper – which students will submit to the client – will count toward the 15 hours per week obligation. Further, the 15 hours per week is an average, not a precise weekly requirement.)
Students who enroll in this course will be automatically enrolled in both the seminar and project components and may not take either component separately. After Add/Drop, a student who wishes to withdraw from a practicum course must obtain permission from the faculty member and the Assistant Dean for Experiential Education. The Assistant Dean will grant such withdrawal requests only when remaining enrolled in the practicum would cause significant hardship for the student. A student who is granted permission to withdraw will be withdrawn from both the seminar and project components.
Default attendance rule for all practicum courses (unless the professor indicates otherwise): Regular and punctual attendance is required at all practicum seminars and fieldwork placements. Students in project-based practicum courses are similarly required to devote the requisite number of hours to their project. If a student must miss seminar, fieldwork, or project work, he or she must speak to the professor as soon as possible to discuss the absence. Unless the professor indicates otherwise, a student with more than one unexcused absence from the practicum seminar (out of 13 total seminar sessions), or one week of unexcused absences from the fieldwork or project work (out of a total of 11 weeks of fieldwork or project work), may receive a lower grade or, at the professor’s discretion, may be withdrawn from the practicum course.
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(CRN #: 25707)
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