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Chapter 4. Common Law, Statutory Law, and Administrative Law. Quote of the Day. Progress everywhere today does seem to come so very heavily disguised as chaos. Joyce Grenfell, British actor. Three Sources of Law. Common law Statutory law Administrative law. Common Law.
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Chapter 4 Common Law, Statutory Law, and Administrative Law
Quote of the Day Progress everywhere today does seem to come so very heavily disguised as chaos. Joyce Grenfell, British actor
Three Sources of Law • Common law • Statutory law • Administrative law
Common Law • It is the judge-made law • Stare decisis: “Let the decision stand,” that is, the ruling from a previous case • Precedent: An earlier case that decided the issue • A desire for predictability created the doctrine of stare decisis • The value of predictability is apparent - people must know what the law is
Common Law • Bystander cases • Bystander’s obligations - you have no duty to assist someone in peril unless you created the danger
Statutory Law • Statutes affect each of us in our business, professional, and personal lives • Bill: A proposed statute, submitted to Congress or a state legislature • Veto: The power of the president to reject legislation passed by Congress
Statutory Law • Bills are proposed for the following reasons: • New issue, new worry • Unpopular judicial ruling • Criminal law • Discrimination: Congress and the courts • The civil rights movement of the 1950s and 1960s convinced most citizens that African Americans suffered significant and unacceptable discrimination
Conference Committee • The committee examines the differences between the two bills and tries to reach a compromise • When the Conference Committee has settled every difference between the two versions: • The new, modified bill is sent back to each house for a new vote
Statutory Interpretation • Courts are called upon to interpret a statute, to explain precisely what the language means and how it applies in a given case • Three primary steps in a court’s statutory interpretation: • Plain meaning rule • Legislative history and intent • Public policy
Administrative Law • Background • Congress passed the Interstate Commerce Act, creating the Interstate Commerce Commission (ICC) • The first administrative agency • The ICC was able to hire and develop a staff that was expert in the issues that Congress wanted controlled • Classification of agencies • Federal, state, and local
Administrative Law • Executive-Independent • Some federal agencies are part of the executive branch while others are independent agencies • This is a major distinction • Enabling legislation • Congress creates a federal agency by passing enabling legislation
Power of Agencies - Rulemaking • Administrative agencies use three kinds of power to do the work assigned to them: • They make rules • They investigate • They adjudicate
Types of Rules: Legislative and Interpretive • Legislative rules • Require businesses and people to act a certain way; have the effect of a Congressional statute • Interpretive rules • These do not change the law; they define or apply the laws to new situations
How Rules are Made • Informal rulemaking • Proposed rule must be published and public allowed to comment • Formal rulemaking • Must hold a public hearing before establishing the rule
Investigation • Agencies do a wide variety of work, but they all need broad factual knowledge of the field they govern • To force disclosure, agencies use subpoenas and searches
Subpoenas • Is an order to appear at a particular place and time • A subpoena duces tecum requires the person to produce certain documents or things • The information sought: • Must be relevant to a lawful agency investigation • Must not be unreasonably burdensome • Must not be privileged
Search and Seizure • An agency will want to conduct a surprise search of an enterprise and seize any evidence of wrongdoing
Adjudication • To hold a formal hearing about an issue and then decide it • Most adjudications begin with a hearing before an administrative law judge (ALJ) • Administrative law judge (ALJ): An agency employee who acts as an impartial decision maker
Limits on Agency Power • Four primary methods of reining in these powerful creatures • Statutory • Political • Judicial • Informational
“An understanding of how law is made is the first step toward controlling that law.”