Class 13: Regulatory Law and Policy Flashcards
The principles upon which governmental law, regulation, funding priorities and courses of action are based.
Public Policy
Government intervention in economic activities using commands, controls or incentives.
Regulation
These are all reasons to _____:
-Preserve fair competition (Economic)
-Protect consumer choice & honest info (economic)
- Product and personal safety (Social)
-Address negative externalities (Social)
E.g., EPA rules on pollution
-Achieve Social Goals
Fairness, Equal Opportunity, health and safety, environmental quality.
Regulate
According to the Wilson Matrix
Concentrated Benefits, and Concentrated Costs are _____
Interest Group Politics
Outcome depends on which group is most well funded and effective.
According to the Wilson Matrix
Concentrated Benefits, and Diffuse Costs are _____
Entrepreneurial Politics
In Client Politics, the Beneficiaries Will Try to Become The Clients of the Lawmakers, so the latter act in their favor.
According to the Wilson Matrix
Diffuse Benefits, and Concentrated Costs are _____
Client Politics
For Alternative To Be Adopted, an “Entrepreneur” Must Mobilize Those Who Are Not Incentivized To Act Because Each Will Only Benefit A Little
According to the Wilson Matrix
Diffuse Benefits, and Diffuse Costs are _____
Majoritarian Politics
Outcome will largely depend on which group is able to command a political majority.
What are the 4 types of agencies
Federal
State
Independent Regulatory Commissions
Executive Branch Agencies
Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.
One of these functions is ________ meaning that agencies have expertise and can make rules without the political fanfare sometimes.
Rule making (legislative function)
Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.
One of these functions is ________ meaning that Agencies can hold hearings (mini-trials w/o juries) before ALJs to assess when rule is violated
Adjudication (judicial function)
Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.
One of these functions is ________ meaning that Can issue subpoenas, levy civil penalties, refer matters to DOJ
Investigations & Enforcement (exec function)
Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.
One of these functions is ________ meaning to Award grants/loans; welfare/SS disputes, licenses, leases, etc.
Discretionary Actions (exec function)
Agencies Are Governed by Administrative Procedure Act. _____ Requires:
-Rules require notice to Public and Comment Period
Evaluation of Comments
-Adoption and Publication in Federal Register/CFR
-Rules are subject to judicial review, but policy statements and agency procedure are not.
Informal Rule-Making
Agencies are creatures of ____
Legislature
These describe ____
- Agency must act within delegated authority
- But use of vague standards is upheld: e.g., acting in the “public interest,” to “prevent unfair methods of competition”
- Broad discretion
Delegation of Authority
What Limits Imposed by Bill of Rights Are Agencies Subject to?
5th & 14th Am. Procedural due process limits apply: notice and hearing required before taking away an entitlement.
What Limits Imposed by Bill of Rights Are Agencies NOT Subject to?
self-incrimination, probable cause (IRS), full inspections without narrow warrants
Factors AffectingAgency Rule Making (Three Major)
- Political influence (Executive and Congressional)
- Judicial Review
- Private Interest Influence
_______ - provided there is statutory authority, only “arbitrary and capricious” rules are not permissible.
(within the Judicial Review of Agency Rule-Making section)
Deferential Review of rule-making
Agency ______(Adjudication/Investigation) - Hearing before agency or administrative law judge (no jury)
Less procedural protections but right of appeal to federal Ct.
Admin Actions are now commonly used by the SEC to determine securities violations.
Adjudication
Agency \_\_\_\_\_\_(Adjudication/Investigation) - Agencies have subpoena power to demand records and witnesses and conduct administrative “searches”; 4th Amendment loosened; 5th amendment offers limited protection only when it comes to documents. Can impose fines, disgorgement and order debarment
Investigation
________Discretionary Actions - Awarding grants and contracts, resolving tax disputes and unemployment compensation claims
Informal Discretionary Actions
Limits:
Agency must follow its own rules
Agency must provide explanation of its decision.
Review of ___________
In the context of agency adjudications, ALJs often make findings of fact.
When challenged, Courts will review fact finding:
But, they will generally be upheld, provided the Agency had substantial evidence (i.e., whether the record could reasonably support the agency finding).
Fact Finding
Review of ___________
Court will give deference to any “reasonable” interpretation of a Statute made by an agency.
But not all interpretations are reasonable.
Statutory Interpretations
_____________ Act allows citizens to request agency records for virtually any purpose, except:
National Security documents
Internal personnel docs
Trade secrets
Info compiled for law enforcement purposes
Freedom of Information Act (FOIA)
no judicial review of rules until Agency has tried to apply and enforce it. AKA, the rule of the agency must be ____
ripe
Standing to Sue and agency. Must satisfy one of 3 prongs..
Concrete, particularized and actual harm
Causation – injury traceable to challenged action
Redressibility by Courts
