Types of Law

1. Types of Law We are looking at the types of law from the perspective of how they are created, where they come from. OBE-118, Section 10 Fall 2004 John McKinsey

2. Types of Law • We care as much about where the law came from (who or what created it) as we do what the law is. • Fundamentally, we can say law comes from three sources: Legislative process Court-made law Agency-made law

3. Statutory Law • Legislature or Congress: then Executive Approval or Veto • What limits the authority of a State to make laws? • What limits the authority of the Federal government to make laws?

4. Court-Made Law (Common Law) • Common law is the law made by courts. • Common law began before there were American courts – with the courts of England. • Common law evolves narrowly, slowly, with occasional major decisions. • A court decides the specific issue before it and no more.

5. Stare Decisis and Precedent • Generally courts follow previous decisions – creates predictability • Courts will also, however, deviate when circumstances require – provides flexibility • Sister or courts look upon a different court’s decision with a more critical approach • A lower court must follow the precedent from courts above it • The same court might even change its mind

6. But law is more complex…. Courts interact with statutory law (and thus the legislative process) creating a constantly changing, evolving face of law.

7. The Evolution of Law • 1964 Civil Rights Act • Griggs v. Duke Power When it is not related to job performance it is illegal • Wards Cove Packing When it does not significantly serve a legitimate business goal • 1992 Civil Rights Act When is a company practice that has a discriminatory effect illegal employment discrimination?

8. Types of Law Person or Business

9. Dealing with the Law • Businesses deal with the law in many ways • Lobbying to change or influence statutory law • Dealing with agencies or executive branch departments to get permits, fight off a fine, etc • Disputes arising out of interactions of a business with other individuals\ or business entities (torts and contracts) The next two topics deal with this last type of interaction with law

10. Types of Law (emphasizing the ways in which business interacts with the law) Legislatures/ Executive Person or Business Third Parties (other businesses, individuals, etc) Courts Agencies

11. Administrative Law (Regulation) • Actually the most relevant topic we have hit yet! • Admin law is agency law • Agencies are incredibly powerful and can do great or terrible things to individuals and businesses

12. Administrative Agencies • Sub-branches of government • Typically created by an enabling statute • Federal, state and local branches • Main classification task: Executive Departments versus Independent Administrative Agencies

13. Types of Administrative Agencies Executive Departments Part of the executive branch of the government and thus carry out functions of government • Example: • Cabinet-level departments of US President

14. Types of Administrative Agencies Independent Administrative Agency • Agencies somewhat independent of all three branches of government • Still part of executive branch of government • Not directly controlled by executive or legislative branches • Usually run by a board or commission • Board members or commissioners serve for a fixed term

15. Administrative Agency Rules Regulations Orders Hearings Agency Staff execute these products of rulemaking Individuals and the Public are affected by agency action Police power of state Enabling Statute

16. Agency Rulemaking • Similar to a legislative process • Administrative Procedure Acts or other statutes usually specify a process to follow • Proposed Rule must comply with higher law • Notice and response to comments is the main responsibility we expect for due process purposes • Best advice: when you find out an agency is going to regulate something you do, get involved early, and be persistent and active

17. Other Agency Roles/ Functions • Investigation • Enforcement • Adjudication- (hearings)

18. Administrative Hearings • Due Process Requirements • Notice and opportunity to be heard • Sometimes to confront witnesses against you • Usually “evidentiary” in nature but less formal than court system • Can have an attorney or representative

19. But law is more complex... • We have actually gone off on a tangent, fully exploring agencies and what they do. • Our topic today is primarily sources of law. • We have seen that agencies make law in addition to applying it and enforcing it. • But, back on our original topic, you should understand that courts interact with agencies much like they do with the legislative process.

20. Judicial Review of Agency Action • Scope of a court’s review: • Usually just the application of the law to the issue at hand • To get a court to review you must have “standing”: • Injury

21. Judicial Review • Criteria for Review (Arbitrary and Capricious) (“Chevron” deference) • Violation of a higher law (constitution, statutes) • Own process not followed • Exceeded discretion (deference given to agency) • Not a “substantial evidence” standard, instead think of it as “is their some evidence that supports the agency’s decision.