|Chicago-Kent College of Law
Illinois Institute of Technology
|Main Fall 1998 Administrative Law Page|
The World’s Internet service providers have agreed upon a new system for Internet governance. The institutional core of this system is an International Council of Participants ("ICOP"), located in Prague, Czech Republic. The ICOP has ultimate authority for deciding whether an applicant for an Internet domain name may receive one. An Internet domain name is the mnemonic address, such as www.kentlaw.edu or www.microsoft.com. Under the agreement setting up ICOP, applicants will be refused domain names if they have not agreed to be bound by rules adopted from time to time by ICOP and/or if they "traffic in" content, or Web sites handling content, that is "indecent, scandalous, fraudulent, or infringing of intellectual property rights." The agreement setting up ICOP is a contract among the participating Internet service providers, most of whom are individuals or private corporations.
The authority of ICOP is exercised by a five member council elected for staggered three year terms through an email balloting process in which each holder of an Internet domain name is entitled to one vote. Any revisions to the basic ICOP contract and bylaws are valid only after they are adopted by the Council and approved by a "review board," made up of the CEO’s of all Internet service providers.
Any disagreement over the application or validity of any ICOP rule or decision is subjected to final and binding arbitration under the rules of the International Chamber of Commerce--a private arbitration body.
The President of the United States has issued an executive order obligating Internet service providers and all Internet users in the United States fully to comply with the ICOP system. Your client, Wannabee ISP, ("WISP"), has applied for the Internet domain name www.wannabee.com. Its application has been rejected by ICOP on the grounds that it refuses to be bound by the ICOP rules and decisions. (Your client has assured you that it does indeed refuse to agree to be bound by the ICOP rules and decisions because it refuses to recognize ICOP.) What arguments would you make to invalidate the decision to deny a domain name to your client? What remedies would you seek? In developing your argument and analysis, be sure to explain which arguments are strong and which are weak and why.
The Congress of the United States has enacted a statute designating ICOP as the "governing body" of the Internet for all United States users. How does this change your answer to sub question "A"?
What changes should be made in this regulatory scheme to protect it from legal challenges? In describing the necessary changes, do not recommend changes that are not absolutely necessary, because most Internet service providers from other countries and other governments are extremely reluctant to agree on scheme for Internet regulation that seems to be dominated by American institutions.
The United States Congress has decided to regulate HMO’s and other managed care providers of health services. It enacted a statute that authorizes the Secretary of Health and Human Services to issue rules "necessary and appropriate" to protect plan subscribers against:
- - denial of medically necessary services
- - premature discharge from healthcare facilities
- - overcharging
- - conflicts of interest affecting health care providers who also own laboratory facilities
- - incompetent or negligent care
The Secretary convened an advisory committee of distinguished physicians and medical school professors, who developed an extensive list of diseases and conditions, indicating the appropriate treatments and length of hospital stays for those diseases and conditions. After the list was developed, the Secretary published it in the Federal Register as a Notice of Proposed Rule Making, expressing her intent to adopt the list, after modifications suggested by the comment process, as binding on all healthcare providers.
Only about 25 comments were received. A number of them opposed the whole idea of the list. The others made specific suggestions for revisions. In the final rule, the Secretary made all of the specific revisions suggested and said, with respect to the other comments, "We’ve read all of the comments opposing the idea of the list. Based on our administration of healthcare reimbursement for several decades, we have concluded that publishing a mandatory list of treatment is the only practicable way to assure that the statutory criteria are satisfied."
Your client, "Least Care, " received a notice from the Secretary threatening $1 million in civil penalties because it denied care to a series of patients who had been diagnosed as having severe anxiety, and were denied treatment as prescribed in the list. Your client requested an adjudicatory hearing, but this was denied in a letter, asserting that no hearing was necessary because the client admitted not providing the treatment called for by the list. The client did admit that, but wanted a hearing so it could show that there was a dispute about the diagnosis and about the appropriateness of the treatment prescribed by the list.
Where would you go to challenge this decision, and what arguments would you make with respect to the denial of the hearing? Be sure to include all relevant arguments, but distinguish strong ones from the weak ones.
What arguments would you make, in what forum, that the list is not valid?
What is the relationship of those arguments to the arguments you made in
your answer to sub question "A"?
Exam No. _______________
Self-Scheduled, Spring 1998
Time: 3 hours
Dean Henry H. Perritt, Jr.
CHICAGO-KENT COLLEGE OF LAW
FINAL EXAMINATION IN ADMINISTRATIVE LAW
1. This examination consists of 3 pages. Please check to make certain you have the complete examination.
2. Read these instructions carefully and read each question carefully. Think each problem through before you write and treat every appropriate issue in each question. Be direct and concise.
3. Answers will be graded upon the reasons given as well as the conclusions drawn. If more than one reason is pertinent to an answer, state every reason.
4. While you have been permitted to bring materials into the examination room, answering the questions appropriately will put time pressure on you. You should not do extensive research during the examination.
5. You may decide, in answering one or more questions, that a complete answer would require legal research. If this is so, you should identify the specific issue that you would research. If you have a mastery of the basic concepts, you will be able to frame research issues very narrowly and precisely.
6. It also may be that more factual information is required to answer a question. If this is the case, you should say what factual information is required and why you need it. A mastery of the underlying concepts will permit you to frame any factual inquiries very narrowly and link them precisely to the legal issue involved.
7. Organization and clarity are very important. A shorter answer that is well organized and evidences a clear understanding of basic concepts and their interrelationships is better than a long answer with disconnected fragments of information.
8. Do not write outside the margins of your bluebook pages.
9. Write your examination number on your bluebook(s) and on each page of this examination. Do not use your name.
10. When you have finished the examination place it inside your bluebook(s) and deposit them in the appropriate box in the examination room.