JMU COB 318 McCarthy - Test 4

administrative state

congress doesn't have the time or capacity to form all laws + they lack specialization and expertise; so, the USA is an ____ ____ that is made up entirely of unelected bureaucrats

delegation, rule making, enforcement, adjudication

4 steps of Administrative Procedure Act (APA); D, RM, E, A

delegation

congress passes laws that enable agencies to make rules

judicial review

did administrative body exceed its delegated authority?

arbitrary and capricious standard

is the administrative agency "acting like a God" and/or saying "I'm in charge so I can do this..."

fair notice rule

administrative agencies have to give broad public notice before enforcing rules

legislative review

congress takes back delegated authority via a bicameral veto

bicameral veto

if congress wants to "undelegate" a power, it must go through the bicameral system (House and Senate) and presentment (President); it is a purposefully slow process

rulemaking

administrative agencies make their own rules

impetus, notice, comment period, issue final rule

4 steps of administrative rulemaking; I, N, CP, IFR

impetus

congress, the administrative agency itself, and private parties (industry) can act as the force between rulemaking

notice

the publishing of the newly proposed rule; federal register has all proposed rule, with 99% of proposed rules being on the gov't agency's website

comment period

the reasonable period of public comment during rulemaking process

issue final rule

publish the new rule in code of federal regulations

enforcement

administrative agencies enforce their own rules

site inspections

administrative agencies can look at physical plant and records on site

subpoena

administrative agencies give order to testify and disclose records

search warrants

in some instances, administrative agencies can do warrantless searches (mainly issued by administrative law judge) for highly regulated industries

adjudication

administrative agencies can judge their own rules; done through administrative law judges (ALJs; are a part of the agency and take an oath to remain unbiased)

strong deference/Chevron deference

when a federal court yields to an agency's interpretation, so long as its "reasonable"

Freedom of Information Act (FOIA)

allows public to request info from administrative agencies

national security concerns, confidential information, sensitive commercial/financial information, criminal investigation concerns

exemptions to FOIA requests: NSC, CI, SC/FI, CIC

Government in the Sunshine Act

established that all administrative agency meetings are open to the public except rulemaking meetings

Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act

excludes small businesses from regulations designed for big companies (RFA and SBREFA)

administrative/regulatory capture

blurring the lines between gov't and industry such that industry acts as the gov't to regulate itself; when the industry infiltrates a regulatory agency and implements its own rules

corporate law's race to the bottom

orchestrated by robber barons who used New Jersey to change corporate laws; NJ cancelled the laws, so other states started to adopt the code; Delaware "won the race"; 2 steps: enable legislation and fuel regulatory capture

enabling legislation

legislation that allows administrative agencies to regulate itself

fueling regulatory capture

made up of lobbying and the revolving door; keeps regulatory capture going

lobbying

first amendment right to petition the government

revolving door

when people work for both the government and an administrative agency; ogs were Richard Olney and Leland Stanford

Kefauver-Harris Amendments to the Food, Drug, and Cosmetic Act

enabling legislation in "new race to the bottom"; drug approval process must include clinical trials that prove it's safe and effective; includes clinical bias (no data oversight) and publication bias (ghostwriting)

FDA Modernization Act

enabling legislation in "new race to the bottom"; deals with direct to consumer advertising, detailing/off-label prescriptions, and guidelines (ex: healthy blood pressure changed in 2005)

nonprosecution and deferred prosecution agreements

enabling legislation in "new race to the bottom"; NPAs and DPAs that allow administrative agencies to avoid legal consequences by paying a large fine

6 billion

amount of $ donated to pharmaceutical lobbying

Scott Gottlieb

door revolver; FDA commissioner to Pfizer

Steve Hahn

door revolver; FDA commissioner to Chief Medical Officer of Moderna

Robert Califf

door revolver; Duke professor who conducted clinical trials to FDA commissioner to Google Health back to FDA commissioner

Alex Azar

door revolver; CEO of Eli Lilly to Secretary of Health and Human Services

Julie Gerberding

door revolver; CDC Director to Merck

Curtis Wright

door revolver; FDA to Purdue Pharmaceuticals

Merck's Vioxx

killed 60-500k; entered NPA, paid $1 bil fine

GlaxoSmithKline's Paxil

linked with thousands of adolescent suicides; entered NPA, $3 bil fine

Purdue's Oxycontin

200-500k addicted; entered NPA, paid $11 bil fine

agency

is there a principal (employer) - agent (employee) relationship?

agreement, ratification, estoppal/apparent authority, operation of law

formation of agency (A, R, E/AA, O of L)

agreement

95-97% of formations; sometimes expressed (definite terms; written or oral, equal dignity doctrine) or implied (oral or conduct)

ratification

agreement when employee just starts working for employer and after certain period of time it is determined that the employee works for the employer

estoppal/apparent authority

fairness; formation when employer creates appearance that employee works for them

operation of law

formation when disaster happens; anyone who responds to disaster works for the company

compensation, reimbursement, indemnification, cooperation

principal's duties in agency (C, R, I, C)

performance, notification, loyalty, obedience, accounting

agent's duties in agency (P, N, L, O, A_

independent contractor

principal cannot dictate and control the specific details of work; employee is not an agent, has no employer liability, and gets no benefits

control details, close supervision, similar tasks, special skill, duration, regularity of payment

independent contractor test:

- can employer c___ d____

- is there c___ s___

- is person engaging in s___ t___ that an agent would

- is s____ s____ required

- what is the d___ of the task

- what is the r_____ of p____

never liable, both liable

Principal-Agent Contract Liability

- disclosed principal/employer: agent is ______ _____ under the contract

- undisclosed/partially disclosed principal/employer: agent and principal are _____ ____ under the contract

scope of employment, respondent superior, vicarious liability

Principal-Agent Tort Liability

- was agent within the ______

- derives from r____ s____/v___ l____

authorize, time/place/manner, routine, reasonably anticipate, advancing, interests, solely, agent, tools

scope of employment test:

- did principal a___ the act

- what was t__/p__/m___ of act

- was act r___

- could principal r____ a___ the act

- was act a____ principal's i____

- was act done s___ in a____'s interests

- does principal supply t___

no

is there such thing as principal-agent criminal liability?

wages/hours, Family and Medical Leave Act, income security, health insurance

employee rights/benefits:

- w/h

- F&MLA

- i___ s___

- h___ i___

Fair Labor Standards Act, 7.25, overtime, hourly, child labor

wages/hours:

- governed by FLSA

- federal minimum wage: $___

- o____ pay for h___ employees

- c___ l___ laws

maternity, sick, 12, unpaid, Federal Employees Paid Leave Act, 12, paid

Family and Medical Leave Act (FMLA)

- m___ and s___ leave: __ weeks of ___ leave

- FEPLA: federal employees get ___ of ___ leave

Social Security Act, retirement, Federal Unemployment Tax Act, laid off, workers compensation

income security: SSA

- r___

- FUTA for l___ o___ workers

- w____ c____: state law (scope of employment)

Social Security Act, medicare, 65+, medicaid, poverty, Affordable Care Act, 50+

health insurance: SSA

- m___ (age ___) and m____ (people below the p___ line)

- ACA: companies with ___ employees must provide health insurance

Title VII

deals with discrimination in employment context, derives from Civil Rights Act

race, gender, sincerely held religious belief, age, 40, recognized disability, sexual orientation, transgender

protected classes: people allowed to sue under Title VII

- discrimination based on:

- r_

- g_

- s_ h_ r_ b_

- a_ (elderly, _+)

- r_ d_

- s_ o_

- t_

Equal Employment Opportunity Commission, action decision, reinstatement/hired, wages, compensatory damages, punitive damages

EEOC; employment discrimination claims begin here

1. File claim

2. EEOC makes a__ d__ (almost never happens)

3. File lawsuit in federal court if EOCC takes no action

- remedies:

- r_/h_, lost w_, c_ d_, p_ d_

intentional discrimination

disparate treatment

1. prima facie case

2. employer offer valid explanation

3. protected individual proves pretext (proves employer lied in step 2)

prima facie case

show you're protected, qualified, rejected, and other party was non-protected

unintentional discrimination

disparate impact, i.e. tests/qualifications

religious descrimination

must be discrimination against a sincerely held religious belief

- exemptions: religious orgs/schools

- reasonable accommodations: Sabbath, dress code, prayer schedules, food/dietary

quid pro quo

type of sexual harassment; "this for that"; trading something for some sort of romantic behavior

hostile work environment

type of sexual harassment; multiple instances of unwanted romantic behavior

Title VII retaliation

being retaliated against because of sexual harassment

business necessity, bona fide occupational qualifications, seniority system, after acquired evidence of misconduct, lack of discriminatory motive

Title VII defenses:

- b__ n__

- b__ f__ o__ q__

- s_ s_

- a_ a_ e_ of m_

- l_ of d_ m_

Americans with Disabilities Act

ADA; company must have 15+ employees and apply reasonable accommodations unless they require undue hardship

disability

physical/mental impairment that substantially limits 1+ major life activities; ex: alcoholism, obesity, HIV status

affirmative action

preferential hiring/promotion of a protected class (usually race and gender)

- CA, TX, WA, FL, MI have banned affirmative action

labor unrest

led to labor law being created; derived from Haymarket and Homestead riots, Pullman strike, and Great Depression

concerted action

original unions and strikes; yellow dog contracts, pinkertons, labor injunctions, blacklist

National Labor Relations Act; unionization, discriminate, retaliate, good faith bargaining

NLRA; forbids unfair labor practices

- company can't stop u___, d___ against unionizers, r__ against unionizers

- company must engage in g___ f___ b___

National Labor Relations Board

NLRB; impasse occurs, union can go on strike; company can hire replacements and if they don't, they must rehire the strikers

Labor Management Reporting and Disclosure Act

LMRDA; deals with internal union disputes

grangers, populists, silver movement

their protest led to creation of Sherman Antitrust Act; G, P, SM

section 1

Sherman Antitrust Act; can't have a contract/combination in restraint of trade; deals with agreements in restraint of trade

Eugene V. Debs

Who led the Pullman Strike?

per se violation

section 1 violation with no analysis required

rule of reason violation; purpose, implement, competition, restrictive

section 1 violation with required analysis:

- look at p__, market ability to i___, effect on c___, availability of less r___ means

horizontal restraints

agreements among competitors

price fixing, group boycott, market allocation, trade associations

the 4 horizontal restraints:

1. PF

2. GB

3. MA

4. TA

trade associations

which horizontal restraint is a rule of reason violation? ex: Almond Alliance

vertical restraints

when 1 company integrates all aspects of its business and tries to do everything itself

territorial distribution, resale price maintenance

the 2 vertical restraints (both rule of reason analysis)

1. TD agreements

2. RPM agreements

section 2

Sherman Antitrust Act; no monopolies, attempts to monopolize, or monopolistic behavior

monopoly power

entity has a dominant market share in relevant market and engages in anti-competitive acts/exhibits anti-competitive intent

attempted monopoly

anti-competitive conduct, intent to exclude, and dangerous possibility of success

international monopoly

dominant market share, company transacts business in USA with substantial effect on US commerce

Clayton Act

restricted using the Sherman Antitrust Act against labor unions

Sections 2, 3, 8, and 7

what 4 sections are we concerned with in terms of the Clayton Act?

Clayton Act Section 2

deals with price discrimination (unless bulk purchase), matching offers, and market fluctuations

Clayton Act Section 3

deals with exclusionary practices

exclusive dealing, tying arrangement

2 types of exclusionary practices allowed under Section 3 of Clayton Act (ED, TA)