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F O R D H A M U N I V E R S I T Y S C H O O L O F L A
W
FINAL EXAMINATION IN LEGISLATION & REGULATION
(Sections 1 & 2) MAY 14, 2015
THIS EXAMINATION IS 7 PAGES STUDENT
EXAMINATION # __________
THIS IS A 3 HOUR EXAMINATION
THIS IS AN OPEN BOOK EXAMINATION PROFESSOR
SAIGER
_____________________________________________________
______________
EXAMINATION CHECKLIST:
BE SURE your student examination number is on your exam.
MATERIALS ALLOWED AT YOUR DESK: Any written
noninteractive materials (open book exam).
MATERIALS TO BE TURNED IN: Exam questions, exam
books, scrap paper.
INSTRUCTIONS:

There are 3 questions on this examination. Answer all 3
questions. When a question has subparts,
answer all subparts. Read the questions, and their associated
instructions, carefully.
I suggest that you budget your time in accordance with the time
allotments indicated at the
beginning of each question. I will weight each question in
proportion to those time allotments.
Should you find that in order to answer a question you need to
know a fact or legal principle that has
not been established in the reading, in class, or by the
examination question, you should make clear
what unknowns must be known, and why. Then discuss various
alternatives in light of the range of
plausible unknowns. Similarly, if your answer to any question
depends on the judicial philosophy of
a deciding court, discuss various alternatives in light of the
range of judicial approaches that have
any substantial traction in the courts of the United States as
currently constituted. In general, if you
identify competing rules or results, discuss which is preferable
and why.
I have condensed and altered actual statutory language and real-
life facts for the purposes of these
examination questions. Therefore, you should not use any
special outside knowledge you may have
about particular statutes or policy areas when writing the
examination. Rely upon materials we have
studied and materials provided in the examination.
Students typing their examination: To the extent your
examination software permits: Use a

standard font and standard margins. Make sure your exam
number (not your Fordham ID number
or your Social Security number) is on the top of every page.
Students handwriting their examination: Start each question in
a new bluebook. Write on only one
side of each page. Do not write in the margin. Please write
legibly. Number your bluebooks
consecutively (e.g., “book 3 of 5”). Write your exam number
(not your Fordham ID number or your
Social Security number) on each bluebook.
page 2 of 7
QUESTION 1 (40 minutes)
When Ms. Peggy Mastroianni of the Office of Legal Counsel at
the Equal Opportunity Employment
Commission (EEOC) spoke to the class at our second plenary
session, she indicated that the EEOC
lacks authority to issue notice-and-comment rules under Title
VII of the Civil Rights Act. Title VII
only gives the EEOC authority to adjudicate, “on or off the
record,” whether employers have violated
the statute. Ms. Mastroianni further indicated that, although the
EEOC is not authorized to issue
notice-and-comment rules under Title VII, it sometimes does so
nevertheless, as a way of eliciting
comment from the public and communicating with regulated
employers.
Ms. Mastroianni noted that the EEOC does have authority to
issue notice-and-comment rulemaking

pursuant to other statutes for which it is the implementing
agency. One such statute is the
Americans with Disabilities Act Amendments Act (ADAAA).
Assume the following facts about the following three
hypothetical actions taken by the EEOC:
Proceeding 1. On January 1, 2014, the EEOC publishes what it
styles a “notice of proposed
rulemaking” in the Federal Register. The notice announces that
the agency proposes to
interpret Title VII’s prohibition on employment discrimination
“because of sex” to include
discrimination against an individual because that individual is
transgender. (The notice calls
this practice “gender identity discrimination.”) The notice
requests comment from the public
no later than March 15, 2014.
On August 1, 2014, the EEOC publishes a document entitled
“final rule” in the Federal
Register. That document states, “Gender identity discrimination
is discrimination ‘because
of sex’ under Title VII.” The document states that this rule is
an important one, and may
have an impact of as much as $200 million annually on the
American economy. The “final
rule” document does not, however, respond to several comments
that were timely submitted
and that offer serious and sophisticated legal and policy
arguments for the proposition that
gender identity discrimination should not be considered
discrimination “because of sex.”
The “final rule” document does not even acknowledge those
comments.

Proceeding 2. After the conclusion of proceeding 1, on January
1, 2015, the EEOC
announces that it is fining the ABC Corporation $25,000 for
firing a transgender employee.
The firing, the EEOC says, constitutes discrimination “because
of sex.” (Fines are authorized
by Title VII.) The EEOC holds no formal hearing and informs
the ABC Corporation of its
decision by letter. The letter cites the “final rule” issued in
proceeding 1. The letter does not
respond to any of the comments submitted during proceeding 1
arguing that gender identity
discrimination should not be considered discrimination “because
of sex.” One such comment
had been filed by the ABC Corporation.
page 3 of 7
Proceeding 3. Contemporaneously with proceeding 1, on
January 1, 2014, the EEOC
publishes a second document in the Federal Register, which it
styles “notice of proposed
rulemaking.” This notice, unlike the notice in proceeding 1,
cites the agency’s notice-and-
comment authority under the ADAAA. It proposes that gender
dysphoria1 be treated as a
disability under the ADAAA. The notice requests comment
from the public no later than
March 15, 2014.
On January 1, 2015, the EEOC publishes a document entitled
“final rule” in the Federal
Register. This document states, “Gender dysphoria will be

treated as a disability under the
ADAAA.” The document includes language to that effect for
incorporation into the Code of
Federal Regulations. The document states that this rule is an
important one, and may have
an impact of as much as $200 million annually on the American
economy. The document
also includes a thorough analysis of all relevant comments
received.
EEOC did not communicate with OIRA about any of these three
proceedings at any point during
their planning or pendency.
You are an associate in a Washington law firm that represents
the ABC Corporation. Your supervisor
asks you to prepare a memorandum assessing the likelihood that
each of these three proceedings
could be held unlawful and set aside for procedural deficiency
on judicial review pursuant to
APA § 706(2)(D).2 When your supervisor makes the
assignment, she reminds you that she is asking
you only to address procedural deficiencies in the EEOC’s
work, not substantive ones. As she is
leaving the room after giving you your assignment, your
supervisor comments, “Talk about
procedural deficiency — it’s flabbergasting that EEOC thought
it could get away with not even
submitting their NPRMs and final rules to OIRA!”
Write the requested memorandum.
1 “People who have gender dysphoria feel strongly that they are
not the gender they physically appear to
be.” Source: Webmd.com.

2 5 U.S.C. §706(D): “The reviewing court shall * * * hold
unlawful and set aside agency action, findings,
and conclusions found to be * * * without observance of
procedure required by law.” (APA § 706 is
reproduced at p. 1231 of your casebook.)
page 4 of 7
Fordham is an American state. In 2003, the Fordham legislature
enacted a statute designed to stem
a recent wave of insurance fraud. As passed in 2003, the act
entitled “An Act to Eliminate the Use of
Fraudulently Obtained Personal Information in Commercial
Transactions,” states that it is a crime
for a person or persons to (i) obtain personal identifying
information of another person,
whether that person is alive or deceased; and (ii) knowingly or
intentionally use, or attempt
to use, that information to obtain, or attempt to obtain, credit,
goods, services, or any other
thing of value. Fordham Code Ann. § 76-1102(2)(a).
According to the Fordham Senate’s final conference committee
report on the bill on which that
chamber voted, “this law would put an end to the growing
practice of stealing personal identifying
information like date-of-birth, mother’s maiden name, and
social security number, opening medical
insurance accounts with that information, and submitting false
insurance claims.” The state and

local district attorneys have since successfully used this
provision to prosecute defendants in cases
involving insurance, as well as credit card and bank loan
applications.
In 2012, after an uptick in the number of health-insurance fraud
cases, the legislature passed a bill
that stated “Section § 76-1102(2)(a) is amended by replacing
the phrase ‘or any other thing of value’
at the end of the paragraph with the phrase ‘any other thing of
value, or medical information.’” The
Fordham Governor signed this bill.
Oliver Odious moved to Fordham last fall. He started looking
for employment as soon as he arrived.
In response to employer requests, Odious fabricated a random
nine-digit number and represented it
as his Social Security number. Employers used this number to
generate credit reports on Odious.
The number Odious made up was, by random chance, the Social
Security number of Ira Innocent, a
Fordham resident. When credit-reporting firms reported
Odious’s request to Innocent, Innocent
followed up and called the Fordham police. The police traced
the requests to Odious and charged
him with violating § 76-1102(2)(a).
At trial, Odious plans to claim that his behavior is not covered
by the Fordham statute. Identify the
arguments that Odious should make in support of this argument,
and the best responses to those
arguments that the State could raise. Then, on the basis of these
arguments, explain how a
decisionmaker should rule in the case.

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Federal law currently provides for a national minimum wage of
$7.25 per hour. The law does not
provide for increases over time. Today, this wage is earned by
about 3.6 million American workers,
or about 4.7 percent of all hourly paid workers.
States are allowed to set minimum wages higher than the federal
maximum. Twenty-three states,
including New York State, and the District of Columbia do so.
The 3.6 million figure quoted above
does not include any workers in any jurisdiction whose
minimum wage exceeds the federal standard.
In New York State, roughly 300,000 people, about 3 percent of
the state’s full-time working
population, earn the state minimum wage.
Recently, wages in the fast food industry have garnered
political attention. Of the 200,000 fast food
workers in New York State, 73 percent are women, 70 percent
are over the age of 20, 25 percent are
raising a child, and two-thirds are the primary wage earners in
their family.
The New York State Labor Code contains the following
provisions:
§ 652. Minimum wage. (1) Every employer shall pay to each
of its employees for each hour
worked a wage of not less than: * * *

$7.25 on and after January 1, 2007,
$8.00 on and after December 31, 2013,
$8.75 on and after December 31, 2014,
$9.00 on and after December 31, 2015, or, if greater, such
other wage as may be
established * * * in accordance with the provisions of this
article. * * *
§ 653. Investigation of adequacy of wages.
(1) The [state] commissioner [of labor] shall have power on his
own motion to cause
an investigation to be made of the wages being paid to persons
employed in any
occupation or occupations to ascertain whether the minimum
wages established in
accordance with the provisions of this article are sufficient to
provide adequate
maintenance and to protect the health of the persons employed
in such occupation or
occupations. * * * If, on the basis of information in his
possession with or without
such an investigation, the commissioner is of the opinion that
any substantial
number of persons employed in any occupation or occupations
are receiving wages
insufficient to provide adequate maintenance and to protect
their health, he shall
appoint a wage board to inquire into and report and recommend
adequate minimum
wages and regulations for employees in such occupation or
occupations.
(2) The commissioner shall, within six months after enactment
of any change in the
statutory minimum wage set forth in subdivision one of section

six hundred fifty-two
of this article, appoint a wage board to inquire and report and
recommend any
changes to wage orders governing wages payable to food
service workers. * * *
page 6 of 7
§ 655. Wage board; procedure; report. * * * Within forty-five
days of the appointment of the
wage board to inquire into wages in any occupation or
occupations, the board
shall * * * submit to the commissioner a report, including its
recommendations as to
minimum wages and regulations for the employees in such
occupation or occupations.
* * * The minimum wage recommended by the wage board shall
not be in excess of an
amount sufficient to provide adequate maintenance and to
protect the health of the
employees.
§ 656. Action by commissioner upon wage board report. When
the wage board submits its
report and recommendations to the commissioner, * * * the
commissioner shall publish a
notice of such filing in at least ten newspapers of general
circulation in the state. Any
objections to the report and recommendations shall be filed with
the commissioner within
fifteen days after such publication. * * * [T]he commissioner
shall by order accept or reject
the board’s report and recommendations within forty-five days

after filing with the
* * * department. The commissioner may by such order modify
the regulations
recommended by the board. Such order of the commissioner
shall become effective thirty
days after publication * * * of such order.
On May 6, 2015, New York State Governor Andrew Cuomo
published an editorial on the op-ed page
of The New York Times. He wrote:
INCOME inequality is a national problem that leaders at all
levels of government are
grappling with. * * * Some argue that we can close the income
gap by pulling down the top. I
believe we should do it by lifting up the bottom. We can begin
by raising labor standards,
starting with the minimum wage.
* * * New York State’s minimum wage * * * is now $8.75, up
from $7.25 (and will rise to $9 at
the end of the year). In my latest budget, I proposed raising it
again, to $11.50 in New York
City and $10.50 elsewhere in the state. But the Legislature
rejected that proposal. So I am
continuing the fight. While lawmakers delay, I am taking
action.
State law empowers the labor commissioner to investigate
whether wages paid in a specific
industry or job classification are sufficient to provide for the
life and health of those workers
— and, if not, to impanel a Wage Board to recommend what
adequate wages should be.
On Thursday, I am directing the commissioner to impanel such

a board, to examine the
minimum wage in the fast-food industry. The board will return
in about three months with
its recommendations, which do not require legislative approval.
* * * Through the Wage
Board, New York can set fast-food workers on a path out of
poverty, ease the burden on
taxpayers and create a new national standard.
Meanwhile, Hillary Rodham Clinton, former Senator from New
York, is running for President in the
Democratic primaries. She is contacted by the Progressive
Workers’ Alliance, a nationwide advocacy
and lobbying group with 250,000 members. The Alliance
advocates the adoption of a federal statute
modeled upon the New York Labor Code. The statute backed
by the Alliance has the same language
as the statute above, except that references to the New York
Commissioner of Labor are altered to
page 7 of 7
refer to the United States Secretary of Labor, and the words “at
least ten newspapers of general
circulation in the state” in § 656 are changed to “the Federal
Register.”
The Alliance asks Candidate Clinton to promise that, if elected,
she will advocate for the passage of
its proposed statute, and to promise that she will sign that
statute if Congress passes it. The Alliance
also asks Clinton to promise that should the statute be enacted,
she will direct her Secretary of Labor

to use the powers granted thereunder to institute a minimum
wage for fast food workers nationwide
of $11.50 per hour, irrespective of Congressional approval. The
Alliance communicates to the
campaign that if Clinton makes these three promises (to
advocate for the statute, to sign it if
Congress passes it, and to use it if enacted to benefit fast food
workers), the Alliance will throw its
political, logistical, and financial support behind Clinton’s
candidacy.
*
Imagine that Governor Cuomo directs his Commissioner of
Labor to appoint a wage board for fast
food workers. The commissioner does so. Upon the board’s
report, Cuomo directs the commissioner
to order a minimum wage for fast food workers of $11.50 in
New York City and $10.50 in the rest of
the state. The commissioner does so. No legislative approval is
sought or granted.
Imagine as well that Candidate Clinton makes all three promises
the Alliance requests. She is
subsequently elected to the Presidency. Upon taking office, she
supports the Alliance’s draft bill
when it is introduced in Congress. The bill passes. She signs
it. A federal wage board convened
under the statute by the new Secretary of Labor recommends
that fast food workers nationwide be
paid $10.00 per hour. The board’s report states that this wage
is “sufficient to provide adequate
maintenance and to protect the health of fast food workers.”
President H.R. Clinton then directs the
Secretary to order, pursuant to the new statute’s provisions, a
minimum wage of $11.50 for fast-food

workers nationwide. The Secretary does so. No Congressional
approval is sought or granted.
Answer the following questions, being sure to explain your
reasoning:
(a) Will the order of the New York State commissioner survive
judicial review in the courts
of New York State?
(b) Have H.R. Clinton and her Secretary of Labor acted
lawfully? Will the Secretary’s order
survive judicial review in the federal courts?
E N D O F E X A M I N A T I O N
It has been a pleasure and a privilege to teach you this year.
Have a great summer!
THIS IS A 3 HOUR EXAMINATIONQUESTION 1 (40
minutes)QUESTION 2 (40 minutes)QUESTION 3 (100 minutes)

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