Science, Technology & Administrative Process final examination fall 1991
General Instructions
This is a one-and-a-half hour, open-book exam. You may consult written materials, but discussions with others are not permitted. Be sure to put your exam number on each item that you turn in for grading.
There are thirty (30) true/false questions; answer only twenty-five (25) of them. I will only grade the first twenty five which are answered. Each counts 4%.
Please answer the questions on these sheets. Explanations are unnecessary, but should you feel compelled to explain an answer, please use the reverse side of the sheet, indicating the question your explanation addresses.
QuestionsFor each question you choose to answer [only 25 of 30], please write "true" or "false" in the blank space provided.
1. Decisions such as whether a particular course of action is "feasible" or whether a given risk is "significant" are fundamentally ones of technical "fact."
2. When statutes provide for rulemaking after a "hearing," courts presume that informal rulemaking is adequate even though the rule be called an "order."
3. The doctrine of "primary jurisdiction" concerns the relative competence of courts and agencies over matters of concurrent jurisdiction.
4. Constitutional issues that arise in the context of administrative action are reviewed de novo both as to facts and law.
5. There are many ways to avoid the "exhaustion" requirement.
6. "Formal" adjudication is required only if specified in a statute other then the APA.
7. Decisions of the Copyright Office may be reviewed under the provisions of both 17 U.S.C. and the APA.
8. For patents, 35 U.S.C. is both organic and enabling legislation.
9. For trademarks, 35 U.S.C. is generally the enabling legislation.
10. The standard of review for informal rulemaking and adjudication is generally "capricious and arbitrary."
11. The CAFC reviews PTO decisions under the "capricious and arbitrary" standard.
12. Inter partes adjudication within the PTO generally follows the same format as, e.g., adjudications before the NLRB or FTC.
13. Rulemaking rarely occurs in adjudicatory proceedings.
14. Procedural rules usually must be promulgated under § 553.
15. Most agencies require attorneys to demonstrate a minimum level of familiarity with relevant law before being permitted to practice before them.
16. "Hybrid" rulemaking is a synonym for "ad hoc" rulemaking.
17. If Congress doesn't like an agency rule, its only formal recourse is to amend the statute.
18. The PTO is an independent agency.
19. The patent and trademarks appeal boards do a great deal of "ad hoc" rulemaking.
20. The "rule of prejudicial error" [converse of "harmless error"] is explicit in the APA.
21. The provision in the Lanham Act authorizing creation of the TTAB is "organic" legislation.
22. The Freedom of Information Act adds little to the typical-civil-litigation-type discovery provided for in the APA.
23. Court jurisdiction to review all administrative actions is, in fact, statutory.
24. The provision making certain PTO decisions explicitly nonreviewable is apt to be liberally construed.
25. Agency heads may review initial decisions of ALJs essentially de novo.
26. The PTO may be the only agency with two "heads" [the Commissioner and the Appeal Boards] more-or-less independent of one another.
27. If the Copyright Office were really part of the legislative branch, "examining" applications for registration would probably violate the principle of separation of functions.
28. Court deference to agency determinations should rest more on agency expertise with regard to the issue in question than on agency expertise generally.
29. In formal proceedings, agencies are not permitted to consider evidence that would be inadmissible in a jury trial.
30. Agencies without much policy discretion are often called "ministerial."
