Chapter 4: Common Law, Statutory Law, and Administrative Law
Common Law and the Bystander Rule
Definition and Scope of Common Law
Common law is judge-made law, representing the sum total of all decisions made by appellate courts.
Common law varies by jurisdiction; for example, Pennsylvania common law comprises all appellate decisions within Pennsylvania, whereas Illinois common law consists of all appellate decisions in Illinois.
Two hundred years ago, virtually all law was common law.
Today, common law predominates in tort law, contract law, and agency law, while holding major importance in property law, employment law, and other legal areas.
The Bystander Puzzle and Historical Origin
Illustrative Scenario (Seinfeld Series Finale): New Yorkers Jerry, George, Elaine, and Kramer secured a pilot show deal and flew to Paris on a private jet. In-flight hijinks caused an emergency landing in Latham, Massachusetts. While awaiting plane repairs, they witnessed a gunman carjacking a man in a red subcompact car. The four stood by making derogatory jokes about the victim's weight (Jerry: "There goes the money for the lipo"; Elaine: a large victim is easier to outrun; George: the thief saves the victim money on food; Kramer: filmed the crime to sell footage). The police later arrested them under a statutory Good Samaritan law.
Common Law Bystander Rule: Inherited from English common law, the core rule dictates that a bystander has no legal duty to assist someone in peril unless the bystander created the danger.
Key Early Bystander Precedents
Union Pacific Railway Co. v. Cappier (Kansas):
A train struck a man through no fault of the railroad. Railroad employees saw the incident but rendered no assistance; the victim died before help arrived.
Legal Holding: The railroad owed no legal duty to assist the injured victim.
Judicial Rationale: Courts handle omissions or negligent discharges of legal duties only, not humane obligations. Penalties for withholding relief or failing in charity reside in divine law, not human law.
Carey v. Davis (Iowa, 18 years post-Cappier):
Facts: Ed Carey, a farm laborer working for Frank Davis, fainted from sunstroke in the fields. Davis hauled him to a wagon and left him in the sun for , causing severe, permanent injury.
Legal Holding / Exception: Although a master generally owes no duty to care for an injured servant whose illness was not the master's fault, an exception applies when a servant suffers serious injury or is suddenly stricken in immediate need of emergency aid. The master, if present, is legally bound to take reasonable practicable measures to relieve the servant.
Osterlind v. Hill (1928):
Facts: Osterlind rented a canoe from Hill's boatyard, paddled into a lake, and fell into the water. He clung to the canoe and shouted for help for . Hill heard the cries but did nothing, and Osterlind drowned.
Legal Holding: Hill was not civilly liable under the bystander rule.
Modern Expansion of Bystander Exceptions
Tarasoff v. Regents of the University of California (, Supreme Court of California, 1976):
Facts: On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Two months earlier, Poddar confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by UC Berkeley. Tarasoff's parents sued the university for failing to warn Tatiana or confine Poddar.
Legal Issue: Did Dr. Moore owe a legal duty of care to Tatiana Tarasoff, and did he breach that duty?
Holding (Justice Tobriner): When a therapist determines, or under professional standards reasonably should determine, that a patient poses a serious danger of violence to others, the therapist bears a legal duty to exercise reasonable care to protect the foreseeable victim of that danger.
Legal Principle: Establishes a special relationship exception (therapist-patient) to the general common law bystander rule.
Summary of Common Law Exceptions to the Bystander Rule:
Defendant created the peril.
Employer-employee relationship during an emergency where the employer is present (Carey v. Davis).
Special relationships, such as therapist and patient (Tarasoff).
Absent these specific relationships or actions, complete strangers owe no duty to put themselves in harm's way or render aid.
Doctrine of Stare Decisis
Latin Translation: "Let the decision stand."
Mechanism: Once a court decides a particular issue, it will generally apply the exact same rule in similar future cases (following precedent).
Legal Purpose: Created out of a desire for predictability, enabling citizens and businesses to know the law in advance and make reliable investments (e.g., leasing factory space or buying machinery).
Tension with Flexibility: Rigid adherence to precedent conflicts with the necessity for legal flexibility to adapt to new technologies, unexpected problems, and changing social values.
Application / Exam Analysis Scenario
Facts: Sindhu, while walking her dog Coco, sees skydiver Harley land in a tree above ground, bleeding profusely. Sindhu prepares to dial 911, but Coco runs away. Fearing Coco will jump into a mud pond and trigger a suspected allergy or smell bad, Sindhu chases Coco home and forgets Harley, who dies later.
Analysis: Sindhu is a classic bystander. She did not create Harley's peril, nor did she have an established special relationship or employer relationship with him.
Legal Outcome: Under common law, Sindhu had no legal duty to assist or make a phone call. Harley's family loses the lawsuit; Sindhu wins.
Statutory Law and Legislative Process
Nature and Characteristics of Statutory Law
Definition: Statutes are laws passed by elected legislatures (state assemblies or federal Congress).
Distinction from Common Law: Statutory law is prospective (controls future conduct), passed by elected officials rather than appointed judges, and encompasses virtually all criminal law so that citizens receive advance notice of prohibited acts and penalties.
Duty-to-Rescue Criminal Statutes: Real-world statutes in Massachusetts and nine other states require witnesses of violent crimes to report the crime as soon as reasonably possible, provided doing so does not imperil themselves. (These require reporting, not physical intervention or victim rescue).
Congressional Structure and How Bills Become Law
Houses of Congress: House of Representatives (~23 committees, ~104 subcommittees) and Senate (~17 standing committees, ~70 subcommittees).
Role of Committees: Most legislative drafting and investigation occurs in specialized committees (e.g., Armed Services, Labor, Banking, Judiciary, Agricultural Subcommittee on Specialty Crops).
Catalysts for Legislation:
New societal problems or public concerns.
Unpopular judicial rulings: Congress can pass a new statute to modify or undo a judicial interpretation of a statute. (Congress cannot undo Supreme Court rulings based on the U.S. Constitution).
Need for prospective criminal rules.
General Path of a Federal Bill:
Introduction of a bill in either the House or Senate.
Referral to specialized committee/subcommittee for hearings and revisions.
Committee approval and referral to full house floor for debate and voting.
Approval by full chamber and transmission to the other chamber for identical processing.
Referral to a House-Senate Conference Committee to reconcile differing amendments into a single compromise bill.
Re-voting and approval of the compromise text by both House and Senate.
Presentation to the President to sign into law or veto.
Case Study: Civil Rights Act of 1964
Historical Background: Proposed in 1963 by President John F. Kennedy following nationwide civil rights boycotts, marches, and church bombings.
Core Text of Title VII (§703(a)):
Sec. 703(a)(1): Unlawful to fail/refuse to hire, discharge, or discriminate against any individual regarding compensation, terms, conditions, or privileges of employment based on race, color, religion, or national origin.
Sec. 703(a)(2): Unlawful to limit, segregate, or classify employees in ways depriving employment opportunities based on race, color, religion, or national origin.
House Floor Debates (February 8, 1964):
Representative Waggonner: Opposed the bill, defending the right of businessmen to discriminate as an individual constitutional right and warning against a "Socialist government."
Representative Conte: Supported the bill, quoting Mark Van Doren ("equality is absolute or no, nothing between can stand") and urging a bipartisan coalition to reaffirm constitutional rights.
Representatives Johansen and Goodell: Debated quotas. Johansen questioned if hiring 75 white men out of 150 applicants (75 Black, 75 white) for 100 open jobs constituted illegal discrimination. Goodell clarified the bill requires no quotas or balanced employment; employers may choose freely among equal applicants provided race, creed, or color is not a factor.
Smith Amendment on Sex Discrimination: Representative Smith of Virginia proposed inserting the word "sex" after "religion" in §703.
Representative Celler opposed the amendment, citing French phrase "vive la difference" and arguing total gender equality would disrupt military service, family relationships, alimony, and statutory rape laws.
Representative St. George supported the amendment, noting women were excluded from juries, denied equal education, and deprived of equal pay for equal work.
Political Maneuver: Opponents supported adding "sex" believing it would make the entire Civil Rights Act too unpopular to pass. The strategy failed; the amendment passed, and "sex" was added to protected categories.
Senate Amendments (§703(h)):
Senator Tower raised concerns that §703(2) might ban employment tests.
Added §703(h): Expressly permits employers to give and act upon results of professionally developed ability tests, provided the test is not designed, intended, or used to discriminate based on protected traits.
Final Passage: Signed into law by President Lyndon Johnson after the House-Senate Conference Committee resolved differences.
Three Steps of Statutory Interpretation
Plain Meaning Rule: If words have ordinary, clear meanings, courts apply them directly without further analysis (e.g., "religion" applies to established faiths according to common sense).
Legislative History and Intent: If statutory language is ambiguous, courts examine committee reports, floor debates, and legislative records to determine congressional intent.
Public Policy: If legislative history is unclear, courts rely on general public policies (e.g., crime reduction, equal opportunity) and prior judicial rulings that the legislature chose not to overturn.
Evolution of Employment Discrimination Standards in Courts
Griggs v. Duke Power Co. (, U.S. Supreme Court, 1971):
Facts: Duke Power required high school diplomas and written intelligence tests for higher-paying jobs while exempting existing white employees. Black applicants passed at much lower rates due to historical education discrimination.
Holding (Chief Justice Burger): Title VII prohibits not only overt discrimination, but also neutral practices fair in form that operate to freeze prior discriminatory practices. The statutory standard is business necessity: neutral tests excluding minorities are illegal unless demonstrably related to job performance.
Wards Cove Packing Co. v. Atonio (1989):
Facts: Non-white workers in Alaska salmon canneries held low-paid unskilled jobs, while white workers held high-paid skilled positions.
Holding (Justice White): Overturned the Griggs business necessity burden. Employers only needed to prove that a practice served, in a significant way, "legitimate employment goals," eliminating the requirement that practices be essential or indispensable.
Civil Rights Act of 1991:
Congress passed a 1990 statute restoring Griggs, but President George H. W. Bush vetoed it; a Senate override failed by one vote.
In 1991, Congress passed a compromise bill explicitly restoring the requirement that challenged practices must be "job related… and consistent with business necessity."
Statutory Compromise: Congress deliberately left the terms "job related" and "business necessity" undefined in the statutory text, leaving final definitions to court interpretations.
Statutory Interpretation Exam Scenario
Facts: Kelly Hackworth took leave under the federal Family Medical Leave Act (FMLA) from Progressive Insurance to care for her mother. FMLA requires employers to restore returning workers to their original or equivalent jobs, but excludes company locations with "fewer than 50 people within 75 miles" of the jobsite. Progressive employed 47 people between Hackworth's site (Norman, OK) and Oklahoma City (<75 miles away). Its Lawton, OK site employed 3 people, but was away from Norman.
Legal Analysis: Under the Plain Meaning Rule, "within 75 miles" means . exceeds this threshold.
Outcome: The plain meaning controls; Hackworth was excluded from FMLA coverage and lost her case.
Administrative Law and Regulatory Agencies
Nature, Purpose, and History of Administrative Agencies
Referred to as the "fourth branch of government."
Examples of Federal Agencies:
Federal Aviation Administration (FAA): Airline safety rules (upright seatbacks, tray tables, stowed luggage, electronic device shutdown).
Internal Revenue Service (IRS): Tax administration and collection (Tax Day April 15).
Environmental Protection Agency (EPA): River water quality and Clean Air Act administration.
Federal Trade Commission (FTC): Social media endorsements and child data privacy rules.
Bureau of Land Management (BLM): Control over public lands, oil, and gas.
Immigration and Customs Enforcement (ICE): Regulation of foreign personnel entry.
Historical Development:
First Agency: Interstate Commerce Commission (ICC), created by the Interstate Commerce Act of 1887 to regulate railroad rates and practices.
Expansion Eras: Great Depression of the 1930s (Roosevelt administration created social welfare agencies); 1960s (EEOC created to combat employment discrimination); 1980s (Reagan administration reduced power of selected agencies).
Classification of Administrative Agencies
Executive Agencies: Situated inside executive departments. The President possesses full power to remove agency heads at will at any time.
Examples: IRS (Treasury Department), FBI (Department of Justice), FDA (Department of Health and Human Services), Nuclear Regulatory Commission (Department of Energy).
Independent Agencies: Agency heads serve fixed terms and cannot be removed by the President at will.
Examples: Federal Communications Commission (FCC), Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), National Labor Relations Board (NLRB), Environmental Protection Agency (EPA).
Enabling Legislation: Congress creates an agency by passing an enabling statute describing the problem, establishing the body, and defining its specific regulatory powers.
Three Core Powers of Administrative Agencies
Rulemaking:
Promulgating Legislative Rules: Creates new binding law requiring citizens/businesses to act in specified ways (e.g., FTC rule requiring verifiable parental consent before collecting personal data from children under age 13).
Promulgating Interpretive Rules: Interprets existing statutory terms without changing law (e.g., EPA's 1977 Clean Air Act "bubble concept," defining "stationary source" as an entire factory rather than individual smokestacks).
Informal Rulemaking: Notice-and-Comment method. Agency publishes a proposed rule, allows public submission of comments and data, and publishes final rule with rational written responses to major objections.
Formal Rulemaking: Requires public hearings where affected parties can cross-examine agency experts and present opposing testimony. Agency issues a formal written response covering the entire hearing record.
Case Study (FDA Peanut Butter Rulemaking): In 1958, FDA discovered Jif peanut butter (Procter & Gamble) contained only peanuts and vegetable oil. FDA proposed a minimum peanut content in 1965; P&G fought for peanuts and dragged out formal hearings for years (demanding production of all 20,000 consumer letters). Final rule requiring peanuts was issued in 1968, taking a decade to promulgate.
Investigation:
Subpoenas: Subpoena duces tecum commands an individual/firm to appear and bring specified documents.
Subpoena Limitations: Information sought must be relevant to a lawful agency mandate, must not be unreasonably burdensome, and must not violate constitutional privileges (e.g., 5th Amendment privilege against self-incrimination for corporate officers accused of criminal violations).
Warrantless Searches: Allowed without a warrant in pervasively/comprehensively regulated industries (e.g., mining via Bureau of Mines, firearms via Gun Control Act of 1968).
United States v. Biswell (, 1972):
Facts: Federal Treasury agents conducted a warrantless search of Biswell's pawnshop locked storeroom under the Gun Control Act of 1968, finding two illegal sawed-off rifles.
Legal Holding: Unannounced, warrantless inspections of licensed dealers in pervasively regulated industries are constitutional under the 4th Amendment when authorized by statute and crucial for effective regulatory enforcement.
Adjudication:
Definition: Administrative proceedings held before an Administrative Law Judge (ALJ).
Characteristics: No jury, impartial ALJ employee, informal rules of evidence, decisions appealable internally to agency appellate board, then to federal court.
Constitutional Retraction (2024): The Supreme Court held that Seventh Amendment rights grant civil fraud defendants a right to jury trials in common law courts, significantly restricting SEC and federal ALJ adjudication powers.
Controls and Limits on Agency Power
Statutory Control: Enabling statutes and the Administrative Procedure Act (APA) mandate procedural fairness.
Political Control: Presidential appointment/removal (executive agencies); Congressional power of the purse (funding cuts/defunding programs, such as abolishing the ICC), Senate confirmation of nominees, and statutory amendments.
Judicial Control / Judicial Review:
Fact Standards: Courts defer to agency fact-finding provided decisions are supported by substantial evidence.
Legal Standard History (Chevron vs. Loper Bright):
Chevron U.S.A. Inc. v. NRDC (1984): Former 2-step doctrine required courts to defer to an agency's reasonable interpretation whenever an administered statute was silent or ambiguous.
Loper Bright Enterprises v. Gina Raimondo (, 2024):
Facts: Magnuson-Stevens Act (MSA) required observers onboard fishing vessels (). The MSA explicitly required certain vessel classes to pay observer costs, but was silent on herring boats. National Marine Fisheries Service (NMFS) reinterpreted the statute to force herring fishermen to pay monitor salaries.
Holding (Chief Justice Roberts): Chevron is overruled. Article III assigns statutory interpretation exclusively to the judiciary. Courts must exercise independent judgment to determine if an agency acted within statutory authority, rather than deferring to agency legal interpretations of ambiguous statutes.
Informational Control: Freedom of Information Act (FOIA)
Enacted in 1966 to eliminate government secrecy, echoing James Madison's principle that knowledge governs ignorance.
FOIA Requests: Written requests sent to federal administrative agencies demanding information on two broad categories:
Agency operation, spending, policies, comparative statistics, and environmental/safety data.
Personal records collected by the government regarding the requester (e.g., IRS, FBI files).
Exclusions: FOIA does not apply to Congress, federal courts, White House executive staff, state or local governments, or private businesses.
Response Window and Exemptions: Agencies have a statutory target response time. Ten primary exemptions permit confidentiality, including criminal investigations, internal agency personnel/policy discussions, trade secrets, financial institutions, private personal data, and national security.
American Civil Liberties Union v. United States Department of Justice (D.C. Cir. 2016):
Facts: ACLU filed a FOIA request seeking detailed CIA records on targeted drone strikes (targets, strike numbers, civilian deaths). CIA refused disclosure under national security and intelligence activity exemptions. ACLU argued President Obama and CIA Director Panetta had publicly discussed drone strikes.
Ruling: Summarily affirmed in favor of CIA. Public acknowledgment of a drone program's general existence differs from disclosing operational capability, targets, and tactical resource details, which remain protected under FOIA national security exemptions.