Common Law, Statutory Law, and Administrative Law Flashcards
Common Law
Judge-made law; it is the sum total of all the cases decided by appellate courts; still predominates in tort, contract, and agency law
Stare Decisis
“Let the decision stand,” that is, the ruling from a previous case; a desire for predictability created the doctrine of stare decisis; people must know what the law is
Precedent
An earlier case that decided the issue; courts do not always follow precedent, but they generally do - stare decisis
Bystander Cases
There is no duty to assist someone in peril unless you created the danger;
Statutory Law
More laws are created by statute than by the courts; when the system works correctly, this is the one part of the law over which “we the people” have control - we elect legislators who pass state statutes and senators who create federal statutes
Bill
A proposed statute submitted to Congress or a state legislature
Either the House of the Senate can propose a bill - to become law, the bill must be voted on and approved by both chambers of Congress
If approved by both chambers of Congress, it will then go to the President’s desk to either sign or veto
When a bill is proposed in either house, it is referred to the committee that specializes in that subject
Veto
The power of the president to reject legislation passed by Congress
Statutory Interpretation
Three steps in a court’s statutory interpretation:
1. Plain Meaning Rule: when a statute’s words have ordinary, everyday significance, the court will simply apply those words
- Legislative History and Intent: if the language is unclear, the court will look at the law’s history to determine the intent of the legislation - they will examine committee hearings, reports, and the floor debates
- Public Policy: if legislative history is unclear, courts will rely on the general public policies, such as reducing crime, creating equal opportunity, and so forth; courts assume that the legislature is aware of prior judicial decisions and, if the legislature did not change those decisions, the statute will be interpreted to incorporate them
Congressional Override
When the president vetoes a bill, Congress has one last chance to make it law - an override; if both houses repass the bill, each by a two-thirds margin, it becomes law over the president’s veto
Creation of Agencies
Courts decide individuals cases; they do not regulate industries
The Interstate Commerce Commission (ICC) was the first administrative agency created
Congress creates a federal agency by passing “enabling legislation”; typically, the enabling legislation describes the problems that Congress believes need regulation, establishes an agency to do it, and defines the agency’s powers
Classification of Agencies
Some federal agencies are part of the executive branch and some are independent agencies
Power of Agencies
Use three kinds of power to do the work assigned:
1. Make Rules
-Legislative: much like statutes; an agency creates a law by requiring businesses or private citizens to act in a certain way; failure to follow the rules can result in substantial civil penalty
-Interpretive: these rules do not change the law; they are the agency’s interpretation of what the law already requires
- Investigate: to force disclosure, agencies use subpoenas and searches
-Subpoena: an order to appear at a particular place and time
-Subpoena Duces Tecum: requires the person to appear and bring specified documents
-The information sought must be relevant to a lawful agency investigation, must not be unreasonably burdensome, and must not be privileged
-Search and Seizure: at times, an agency will conduct a surprise search of an enterprise and seize any evidence of wrongdoing - Adjudicate: this means to hold a formal hearing about an issue and then decide it; most begin with an administrative law judge (ALJ), who is an agency employee acting as an impartial decision-maker; the losing party has a right to appeal to an appellate board within the agency
How Administrative Rules Are Made
Informal Rulemaking: on many issues, agencies use a simple “notice and comment” method; agency must publish a proposed rule in advance and permit the public a comment period where the public can submit any objections and arguments (with supporting data) - then the agency will make a decision and publish the final rule; the agency must give a written response to the objections and is required to have rational reasons for the final choices it makes
Formal Rulemaking: Congress may require that an agency hold a hearing before promulgating rules; after the agency publishes its proposed rule, it must hold a public hearing; when the agency makes its final decision about the rule, it must prepare a formal, written response to everything that occurred at the hearing
Limits on Agency Power
Statutory Control: enabling legislation may require that the agency use formal rulemaking or investigate only certain issues
Political Control: the president’s influence is greatest with executive agencies, but Congress “controls the purse” meaning
Congress controls the funding of agencies; Congress has additional control because it must approve presidential nominees to head agencies; Congress may also amend an agency’s enabling legislation, limiting its power
Judicial Review: an individual or corporation directly harmed by an administrative rule, investigation, or adjudication may generally have that action reviewed in federal court - the person seeking review must have suffered direct harm - courts will not listen to theoretical complaints about an agency action
Administrative Procedures Act
Imposes additional controls by requiring basic fairness in areas not regulated by the enabling legislation
