FIN 3054 Common, Statutory, & Administrative Law

Types of Laws

1) Common Law
2) Statutory Law
3) Administrative Law

Common Law

- Retrospective-Looking
- Makes laws
- Judge-Made Law; compromises of all the decisions created by the appellate courts
- Incorporates predictability and flexibility

Where is Common Law predominates?

- Tort Law
- Contract Law
- Agency Law
- Property and Employment Law (Important here too)

Stare Decisis ('Let the decision stand")

- Previous decisions are generally upheld in similar cases

Who are appellate courts?

- Supreme Court
- Court of Appeals
- Circuit Courts

Special Relationship

- Employers are obliged to help an employee who is suddenly stricken with an emergency situation when the employer is present
- Anyone witnessing an extreme situation or if there is a special relationship such as 2. patient-therapist should be required to help (not universal)
- You have an affirmative duty to help family or as a therapist
- If your job is to help others, you have the affirmative duty to help others

Good Samaritan Laws

- Limits the liability of those who aid a person in danger

Statutory Law

- Prospective-Looking
- Legislation passed by a state legislature or Congress
- Enacted at all levels of government
- Citizens who vote have control over statutory law (Elect political representatives)

Why Are Bills Proposed?

- New issues or new worries
- Unpopular judicial rulings

Criminal Law

- The law must be clearly set forth through statutes instead of judicial interpretation

Statutory Interpretation

- Wording can be ambiguous, either by oversight or intentional (as a compromise)
- Once the law has been applied by the courts, its interpretation becomes a precedent to be used in future court cases
- New laws must be interpreted by the courts

Plain Meaning Rule

- The courts must use the common sense definition of words

Legislative History and Intent

- Sometimes the court can look to the reasons behind the law to determine the legislators' intent

Public Policy

- The courts will use accepted social policies, such as reducing crime or providing education to interpret a law

What are the powers of federal agencies?

- Federal agencies have the power to make regulations
1) Rulemaking (Legislative & Interpretive Rules)
2) Investigation
3) Adjudication

Administrative Procedure Act

- Regulates agencies to try to reduce controversy

How is an agency created?

- When Congress passes enabling legislation which describes a problem & defines the agency's powers
- Agencies are created to fulfill a need as oversight is necessary on changing technologies and practices & their effects on society

Legislative Rules

- Require businesses and people to act a certain way: have the effect of a Congressional statute/law

Interpretive Rules

- Don't change the law: they define or apply the laws to new situations

Adjudication

- To hold a hearing of civil & criminal cases within their jurisdiction and then decide how to proceed with an issue and have a decision made

How are proposed rules made?

- Formal Rulemaking
- Informal Rulemaking

Formal Rulemaking

- Must hold a public hearing before establishing the rule

Informal Rulemaking

- Proposed rule must be published in which the public may comment

Voluntary

- Some businesses freely give information and readily comply with agency recommendations

Subpoena

- An order to appear at a particular time and place to provide evidence, may be used to force disclosure
- Must be relevant to the investigation and under the agency's jurisdiction or area of authority
- Must not be unreasonably burdensome on the business
- Must not be privilege, this means that a corporate officer may not be required to incriminate himself
- May be issued by an agency like in the court system

Recalls

- The U.S Product Safety Commission investigates hundreds of products annually and urges a recall of those considered dangerous

Search & Seizure

- A legal search of a business, in order to take evidence of wrongdoing
- Most require a warrant before the search
- Some industries are closely regulated and may be searched at any time without warning

Adjudication Procedure

1) A hearing before an administrative law judge
2) Parties have counsel, but there is no jury
3) Informal; both sides present evidence
4) Judge makes ruling on testimony and evidence
5) On appeal, the court can only overturn the decision based on the law

What happens when the parties are unhappy with results?

- Loser may appeal to an appellate board,
- Appellate board may make a de novo decision and ignore the administrative law judge's decision
- Appeals go to a federal court (if a federal issue) or state court (if state issue)

Limit on Agency Power

- Statutory Control
- Political Control
- Judicial Review

Statutory Control

- The enabling legislation created to place controls on agencies through requirements and restrictions

Political Control

- The President has control over agencies through political pressure and through nominations of agency heads
- Congress has control over agencies by controlling their budgets where they can eliminate funding for a program or entire agency
- Congress can amend enabling legislation to place limits

Judicial Review

- A party injured by an agency decision is entitled to an appeal in a federal court after all appeal options are exhausted within the agency itself.
- The court must consider the facts as stated by the experts in the agency and the law as interpreted by the agency.
- Informational Control and the Public

The Freedom of Information Act (FOIA)

- Allows any citizen to request information from an agency
- A FOIA request can be made for any agency record with a specified format of the records
- The FOIA doesn't require agencies to create new records, conduct research, analyze data, or answer questions when responding to requests
- The FOIA request may be made by a U.S citizen or non-citizen

The Privacy Act

- Prohibits agencies from giving information about an individual to other agencies without consent*

Article I

- Establishes Congress with two houses and Congressional powers
- Each state has 2 Senators & # of Representatives relative to each state's population
- Create and enact legislation, impose taxes, spend money, create copyrights, support the military, & declare war
- Congress regulates commerce with other nations and between different states. Each state regulates commerce within its own borders

Substantial Effect/Commerce Rule

- Congress may regulate any activity which has a substantial economic effect on interstate commerce
- Commerce Clause
- Filburn v. Wickard

State Legislative Power

- States may regulate commerce in its own borders
- A state statute that discriminates against interstate commerce is unconstitutional

Supremacy Clause

- States that the Constitution, federal statutes/treaties are the supreme law of the land
- Federal Law > State Law > Local Law
- Even with no direct conflict, federal law will prevail if the issue is one that Congress controls exclusively

Article II

- Defines the powers and responsibilities of the President (Executive Power)
- The President enforces laws
- Appointment, Legislation, & Foreign Policy

Appointment

- The president nominates federal judges (including Supreme Court Justices) and heads of most administrative agencies

Legislation

- The president and his advisors can propose bills to Congress and veto bills from Congress

Foreign Policy

- The president coordinates international efforts, negotiates treaties, and is the Commander in Chief of the military, but may not declare war

Article III

- Creates the Supreme Court and permits Congress to create lower federal courts (Judicial Power)
- Federal Courts Functions: Common Law, Adjudication, & Judicial Review

Political Speech

- A politician or political process is protected and can be found illegal only if it's intended/likely to promote lawless conduct

Commercial Speech

- Designed to propose a commercial transaction - Regulated stricter than other speech forms and may be outlawed if false or misleading

First Amendment

- "Congress shall make no law...abridging the freedom of speech"
- Speech includes verbal & non-verbal communication
- Legal speech may be limited in time, place, and manner
- Obscenity is not protected by the Constitution

Free Speech on Public Property

- Nobody can restrict whatever is happening unless it's intended and likely to create lawless behavior

Free Speech on Private Property

- Owner has ability to restrict whatever is happening

5th Amendment

- "No person shall be... deprived of life, liberty, and property without due process of law; no shall private property be taken for public use, without just compensation"

Procedural Due Process

- The government must go through procedures to ensure that the result is fair.

- The process due must be in proportion to what the government is trying to take from the person

The Takings Clause

- When the government takes private property for public use, it must pay a fair price (Government cannot take your property unless they provide just compensation)

Substantive Due Process

- Some rights (voting, speech, travel, privacy) are so fundamental that the government may not take them at all

14th Amendment

- " No state shall... deny any person within its jurisdiction the equal protection of the law"

Strict Scrutiny (Race, Ethnicity, & Fundamental Rights)

- Classifications based on any of these are almost never upheld

Minimal Scrutiny (Economic and Social Relations)

- Government actions that classify people or corporations on these bases are almost always upheld

Intermediate Scrutiny (Gender)

- Government classifications are sometimes upheld
- VMI Example: Women applied to VMI and got denied because of her gender as a women so she sued and got admission bc VMI is public school
- Hampden-Sydney Example: It's an all male private school and so they can deny who they want based on gender

Executive Order

- A means of issuing federal directives in the U.S, used by the president of the U.S that manages operations of the federal government
- Once issued remain in force until they're canceled, revoked, adjudicated, unlawful, or expire on their terms