LEGL Chapter 15 Flashcards
What is the difference between a law and regulation?
law is passed by legislative branches and regulations are from administrative agencies
what is an administrative agency?
a board, bureau, commission or organization that makes up the governmental bureaucracy
who has the power to create rules and regulations?
legislative
who has the power to investigate, prosecute, adviser and supervise?
executive
who has the power to decide controversies?
judicial
what are the reasons for agencies?
specificity
expertise
protection
regulation
services
what are the functions of agencies?
rule making
adjudicating
advising
investigating
what type of power is rule making?
quasi legislative function
what has the force and effect of the law?
regulations
what must be allowed after proposing a regulation ?
time for public comment
what are advisory but do not have the force and effect of the law?
guidelines
what two things make up rule making?
guidelines and regulations
what type of function is adjudicating?
quasi judicial
what are the tools for adjudicating ?
cease and desist order
consent order
what is a cease and desist order?
order that the violator must stop objectionable activity and refrain from any further violation
what is a consent order?
order entered by the agency that is agreed upon by the accused and requires the accused to waive rights to judicial law
what case is an example of a consent order?
CFPB consent order with PayPal (2015)
what was required in the consent order in the CFPB consent order with PayPal?
15 million to redress victims, 10 million civil penalty, required improved disclosures
what type of function is advising?
executive
what do you do under advising?
reporting to the president
recommending legislation to congress
issuing advisory opinions to business or individuals
what do you do under investigating?
investigate activities and practices that may be illegal
subpoena powers to require reports
examine witnesses under oath and examine documents
What is the SEC investigation of Robinhood (2020) about?
□ Civil investigation into Robinhood over failure to disclose its practice of selling clients’ orders to high speed trading firms (payment for order flow) and directing its customers orders in a way that was in Robinhood’s best interest (as opposed to client’s best interest)
what resulted in the case v Robinhood?
resulted in $65 million penalty via consent order
how many members are in an agency?
five to seven members
how does a member become chair person?
they are appointed
what do appointments require?
senate confirmation
what are appointees not permitted ?
to engage in other employment during terms
what is the organizational structure of an agency?
chairperson
secretary
executive director of administration
general counsel
who is the chair person?
presiding officer at meetings, most visible
who is responsible for the minutes and the records?
secretary
who is the chief operation officer who supervises administrative functions?
executive director of administration
who is the chief law officer and legal advisor?
general counsel
administrative law judges are what type of staff?
quasi judicial
who performs the adjudicative fact finding functions?
administrative law judges
what type of cases to administrative law judges hear?
cases of alleged law violation and apply the law to the facts
what is the public company accounting oversight board used for?
set up as an agency to report to the SEC
when can the public company accounting oversight board be removed?
only be removed for cause, there has to be a reason
why are limits on removal of board members unconstitutional?
the decision to remove is vested in the SEC commissioners and because the board members cannot be removed except for cause
what are the review of agency decisions?
standing to sue
review of rule making
review of adjurations
review of factual determinations
what is under standing to sue?
reviewability and aggrieved party
what is reviewability under standing to sue ?
is the action or decision of the agency subject to judicial review?
what questions make standing to sue reviewable?
does the statute preclude review?
is the agency action committed to agency discretion of law?
what must happen to be an aggrieved party?
person suffered legal wrong because of agency action OR adversely affected or aggrieved by agency action
What case is an example of an aggrieved party standing to sue?
Bennett v Spear
what case reversed the 9th circuit?
Bennett V Spear
what questions are asked when it comes to review of rule making?
is the delegation constitutionally valid?
Has the agency exceeded its authority?
is the delegation constitutionally valid? must be what?
definite and limited
The federal court will strike down what regulation?
has the agency exceeded its authority?
what case is an example of “has the agency exceeded its authority?
West Virginia v EPA and FDA v Brown and Williamson Tobacco
what did the court hold for FDA v Brown and Williamson Tobacco?
yes, struck down 1996 regulations of tobacco
what are the doctrines under review of adjudications?
exhaustion of remedies
primary jurisdiction
what is exhaustion of remedies?
court will not review unless the aggrieved party has exhausted the administrative remedies and procedures available
what is primary jurisdiction?
applies when a claim is originally filed in court and the resolution issue has been placed with the administrative body
what does review of factual determinations mean?
court presumes that agency was correct
what is standard for review of factual determinations ?
uphold if the agency findings are supported by substantial evidence in the record
what increases the cost of doing business when it comes to cost of administrative state?
regulation
who pays indirectly with higher prices?
consumer
what do companies create?
matching with internal bureaucracy
