Studying for the Bar is so much FUN!

But as of the July--July 2016--admission, NY is now using the UBE (uniform bar exam).

Most of the NY-specific posts are probably irrelevant (since I have no idea what the online NY exam is going to consist of).

I’m debating about whether to remove this blog completely....I don’t really post anything here (and I almost never get any asks).

For those of you still here (or newly here), let me know if you want this to remain up as an outdated resource.

This is pretty amusing--especially because I know I have said the same or similar things myself.  (And yes, I think Barbri is awful....but that’s just my opinion.)

Also, I agree with ATL, the exam makes a mockery of the profession....

There is NO Sixth Amendment right to counsel.  (That right only applies to criminal proceedings.)

Agency not required to provide counsel

Agency may permit party to be represented by non-lawyer

Reasonable notice of hearing

Time, place, and nature of the hearing

Statement of legal authority and jurisdiction

Short and plain statement of the matters asserted

Party may request more particularized statement

Notice is insufficient only if it results in hearing that is fundamentally unfair

Adjudicatory proceeding

Party—determination of rights, duties, privileges of parties or person entitled to be party

Hearing on record—statutory “opportunity to be heard” not sufficient to create right

In order to trigger SAPA provisions, an agency's enabling act must specifically provide for a hearing on the record.

Agencies—authority delegated to agency by legislature through “enabling act” or “organic act,” plus subsequent laws that broaden or limit agency’s jurisdiction, procedures.

A. Delegation of legislative authority

Broad grant of legislative authority

Generally survive challenges based on vagueness, separation of powers doctrine

Can be struck down if delegation constitutes legislative policymaking

B. Delegation of judicial authority

By New York legislature to state agencies—constitutional

Delegation subject to due process requirements

C. Delegation to private entities

Struck down as improper—authority to license horseracing jockeys, owners, trainers

Courts consider 3 factors when determining the amount of process:

the private interest affected by the governmental action;

the risk of erroneous deprivation of that interest using current procedures AND probable value of additional or substantive safeguards; and

the burden (both fiscal and administrative) involved in providing additional process.

The greater the importance of the threatened interest, the greater the likelihood is that courts will require extensive procedural safeguards.

RECIPIENTS OF WELFARE--entitled to pre-termination evidentiary hearing.

RECIPIENTS OF DISABILITY--not entitled to pre-termination evidentiary hearing.

Property--includes tangible items, real property, money, and some intangible items such as entitlements to government benefits.

Professional licenses are considered "property" for due process purposes.  Therefore, there must be notice and an opportunity to be heard.

Liberty--includes fundamental rights (i.e. right to travel, work, procreate, marry) and courts have expanded the concept of liberty, requiring agency hearings for the following:

Long-term suspension or expulsion from school;

Deportation of illegal immigrants; and

The creation of a stigma affecting a person's ability to obtain employment.

State action—generally, this requirement is clearly satisfied

Private entity

          o Insufficient to constitute state action

              Governmental regulation of private entity

              Receipt of governmental funding by private entity

         o Enforcement of mechanic’s lien on a vehicle by private garage through             private sale

For those of you taking New York, Administrative Law has been added.

(And hopefully none of us will have to revisit the experience in July!)