This is a one-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 which you turn in for grading.

There are thirty (30) true/false questions, but you should answer only twenty-five (25) of them. [I will only grade the first twenty five which are answered.] Each will count 4% of your grade.

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, being sure to indicate which question your explanation addresses.

For each question you choose to answer [only 25 of 30],

please write "true" or "false" in the blank space provided.

1. In adjudications, agencies usually consider only evidence which would be admissible in a jury trial.

2. When a statute provides for rulemaking after a "hearing", courts generally presume that § 553 governs.

3. Interpretive rules usually must be promulgated by a "notice and comment" proceedings.

4. Agency heads must review initial decisions of ALJs under the "capricious and arbitrary" standard.

5. Generally, an agency action must be "final" before a court will review it.

6 "Formal" rulemaking is required only if specified in a statute other then the APA.

7. The "rule of prejudicial error" tends to make it easy to reverse agencies for procedural shortcomings.

8. Given differences between the process set forth in organic legislation and that set forth in the APA, the former controls.

9. Given differences between the process set forth in organic legislation and that set forth in enabling legislation, the former controls.

10. The standard of review for rules promulgated under § 553 is generally "capricious and arbitrary."

11. The standard of review for informal adjudication is generally "capricious and arbitrary."

12. Adjudication within the PTO is best characterized as "formal".

13 Legislative facts have no place in adjudicatory proceedings.

14. Vermont Yankee supports the tendency of lower courts to require "hybrid" rulemaking, e.g., when certain facts seemed to be highly controverted.

15. An agency with a great deal of policy discretion can be called "ministerial".

16 The doctrine of "primary jurisdiction" concerns the timing of judicial review.

17 Legislative vetoes can be used by Congress to control administrative agencies.

18. The President generally can remove top officials of agencies without cause.

19. The PTO almost never engages in "ad hoc" rulemaking.

20. Standards of review for the PTO are explicitly addressed in its statutory review provisions

21. 15 U.S.C. § 1067 aside, the Lanham Act is more appropriately characterized as "enabling" than "organic" legislation.

22. The APA provides, in adjudication, discovery closely paralleling that afforded under the F.R.Civ.Pro.

23. Strong policy bias in agency heads is generally grounds for disqualification.

24. The frequency with which an agency is reversed on an issue is a clearer indicator of the standard of review than almost anything else.

25. The number of parties affected and the timing of the effect of administrative action, alone, determine whether agency action is adjudication or rulemaking.

26. The provisions governing statutory review of the Copyright Office generally parallel explicit provisions governing review of most other federal agencies.

27. If the Copyright Office were, for all purposes, part of the legislative branch, 17 U.S.C. § 410 would probably violate the principle of separation of functions.

28. The deference to be afforded an agency should be determined more by its expertise on the issue in question than its expertise generally.

29. Whether a particular drug is "safe" (one of the requirements for FDA marketing approval) is mostly a question of technical "fact."

30. Generally, agencies can require attorneys to demonstrate a minimum level of familiarity with relevant law before being permitted to practice before them.