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LEGL 2700 > LEGL Chapter 15 > Flashcards

LEGL Chapter 15 Flashcards

1
Q

What is the difference between a law and regulation?

A

law is passed by legislative branches and regulations are from administrative agencies

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2
Q

what is an administrative agency?

A

a board, bureau, commission or organization that makes up the governmental bureaucracy

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3
Q

who has the power to create rules and regulations?

A

legislative

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4
Q

who has the power to investigate, prosecute, adviser and supervise?

A

executive

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5
Q

who has the power to decide controversies?

A

judicial

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6
Q

what are the reasons for agencies?

A

specificity
expertise
protection
regulation
services

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7
Q

what are the functions of agencies?

A

rule making
adjudicating
advising
investigating

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8
Q

what type of power is rule making?

A

quasi legislative function

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9
Q

what has the force and effect of the law?

A

regulations

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10
Q

what must be allowed after proposing a regulation ?

A

time for public comment

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11
Q

what are advisory but do not have the force and effect of the law?

A

guidelines

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12
Q

what two things make up rule making?

A

guidelines and regulations

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13
Q

what type of function is adjudicating?

A

quasi judicial

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14
Q

what are the tools for adjudicating ?

A

cease and desist order
consent order

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15
Q

what is a cease and desist order?

A

order that the violator must stop objectionable activity and refrain from any further violation

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16
Q

what is a consent order?

A

order entered by the agency that is agreed upon by the accused and requires the accused to waive rights to judicial law

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17
Q

what case is an example of a consent order?

A

CFPB consent order with PayPal (2015)

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18
Q

what was required in the consent order in the CFPB consent order with PayPal?

A

15 million to redress victims, 10 million civil penalty, required improved disclosures

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19
Q

what type of function is advising?

A

executive

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20
Q

what do you do under advising?

A

reporting to the president
recommending legislation to congress
issuing advisory opinions to business or individuals

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21
Q

what do you do under investigating?

A

investigate activities and practices that may be illegal
subpoena powers to require reports
examine witnesses under oath and examine documents

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22
Q

What is the SEC investigation of Robinhood (2020) about?

A

□ 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)

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23
Q

what resulted in the case v Robinhood?

A

resulted in $65 million penalty via consent order

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24
Q

how many members are in an agency?

A

five to seven members

25
Q

how does a member become chair person?

A

they are appointed

26
Q

what do appointments require?

A

senate confirmation

27
Q

what are appointees not permitted ?

A

to engage in other employment during terms

28
Q

what is the organizational structure of an agency?

A

chairperson
secretary
executive director of administration
general counsel

29
Q

who is the chair person?

A

presiding officer at meetings, most visible

30
Q

who is responsible for the minutes and the records?

A

secretary

31
Q

who is the chief operation officer who supervises administrative functions?

A

executive director of administration

32
Q

who is the chief law officer and legal advisor?

A

general counsel

33
Q

administrative law judges are what type of staff?

A

quasi judicial

34
Q

who performs the adjudicative fact finding functions?

A

administrative law judges

35
Q

what type of cases to administrative law judges hear?

A

cases of alleged law violation and apply the law to the facts

36
Q

what is the public company accounting oversight board used for?

A

set up as an agency to report to the SEC

37
Q

when can the public company accounting oversight board be removed?

A

only be removed for cause, there has to be a reason

38
Q

why are limits on removal of board members unconstitutional?

A

the decision to remove is vested in the SEC commissioners and because the board members cannot be removed except for cause

39
Q

what are the review of agency decisions?

A

standing to sue
review of rule making
review of adjurations
review of factual determinations

40
Q

what is under standing to sue?

A

reviewability and aggrieved party

41
Q

what is reviewability under standing to sue ?

A

is the action or decision of the agency subject to judicial review?

42
Q

what questions make standing to sue reviewable?

A

does the statute preclude review?
is the agency action committed to agency discretion of law?

43
Q

what must happen to be an aggrieved party?

A

person suffered legal wrong because of agency action OR adversely affected or aggrieved by agency action

44
Q

What case is an example of an aggrieved party standing to sue?

A

Bennett v Spear

45
Q

what case reversed the 9th circuit?

A

Bennett V Spear

46
Q

what questions are asked when it comes to review of rule making?

A

is the delegation constitutionally valid?
Has the agency exceeded its authority?

47
Q

is the delegation constitutionally valid? must be what?

A

definite and limited

48
Q

The federal court will strike down what regulation?

A

has the agency exceeded its authority?

49
Q

what case is an example of “has the agency exceeded its authority?

A

West Virginia v EPA and FDA v Brown and Williamson Tobacco

50
Q

what did the court hold for FDA v Brown and Williamson Tobacco?

A

yes, struck down 1996 regulations of tobacco

51
Q

what are the doctrines under review of adjudications?

A

exhaustion of remedies
primary jurisdiction

52
Q

what is exhaustion of remedies?

A

court will not review unless the aggrieved party has exhausted the administrative remedies and procedures available

53
Q

what is primary jurisdiction?

A

applies when a claim is originally filed in court and the resolution issue has been placed with the administrative body

54
Q

what does review of factual determinations mean?

A

court presumes that agency was correct

55
Q

what is standard for review of factual determinations ?

A

uphold if the agency findings are supported by substantial evidence in the record

56
Q

what increases the cost of doing business when it comes to cost of administrative state?

A

regulation

57
Q

who pays indirectly with higher prices?

A

consumer

58
Q

what do companies create?

A

matching with internal bureaucracy

LEGL 2700 (18 decks)

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