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Chapter 4

Chapter 4. Common Law, Statutory Law, and Administrative Law. Quote of the Day. Progress everywhere today does seem to come so very heavily disguised as chaos. Joyce Grenfell, British actor. Three Sources of Law. Common law Statutory law Administrative law. Common Law.

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Chapter 4

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  1. Chapter 4 Common Law, Statutory Law, and Administrative Law

  2. Quote of the Day Progress everywhere today does seem to come so very heavily disguised as chaos. Joyce Grenfell, British actor

  3. Three Sources of Law • Common law • Statutory law • Administrative law

  4. Common Law • It is the judge-made law • Stare decisis: “Let the decision stand,” that is, the ruling from a previous case • Precedent: An earlier case that decided the issue • A desire for predictability created the doctrine of stare decisis • The value of predictability is apparent - people must know what the law is

  5. Common Law • Bystander cases • Bystander’s obligations - you have no duty to assist someone in peril unless you created the danger

  6. Statutory Law • Statutes affect each of us in our business, professional, and personal lives • Bill: A proposed statute, submitted to Congress or a state legislature • Veto: The power of the president to reject legislation passed by Congress

  7. Statutory Law • Bills are proposed for the following reasons: • New issue, new worry • Unpopular judicial ruling • Criminal law • Discrimination: Congress and the courts • The civil rights movement of the 1950s and 1960s convinced most citizens that African Americans suffered significant and unacceptable discrimination

  8. Conference Committee • The committee examines the differences between the two bills and tries to reach a compromise • When the Conference Committee has settled every difference between the two versions: • The new, modified bill is sent back to each house for a new vote

  9. Statutory Interpretation • Courts are called upon to interpret a statute, to explain precisely what the language means and how it applies in a given case • Three primary steps in a court’s statutory interpretation: • Plain meaning rule • Legislative history and intent • Public policy

  10. Administrative Law • Background • Congress passed the Interstate Commerce Act, creating the Interstate Commerce Commission (ICC) • The first administrative agency • The ICC was able to hire and develop a staff that was expert in the issues that Congress wanted controlled • Classification of agencies • Federal, state, and local

  11. Administrative Law • Executive-Independent • Some federal agencies are part of the executive branch while others are independent agencies • This is a major distinction • Enabling legislation • Congress creates a federal agency by passing enabling legislation

  12. Power of Agencies - Rulemaking • Administrative agencies use three kinds of power to do the work assigned to them: • They make rules • They investigate • They adjudicate

  13. Types of Rules: Legislative and Interpretive • Legislative rules • Require businesses and people to act a certain way; have the effect of a Congressional statute • Interpretive rules • These do not change the law; they define or apply the laws to new situations

  14. How Rules are Made • Informal rulemaking • Proposed rule must be published and public allowed to comment • Formal rulemaking • Must hold a public hearing before establishing the rule

  15. Investigation • Agencies do a wide variety of work, but they all need broad factual knowledge of the field they govern • To force disclosure, agencies use subpoenas and searches

  16. Subpoenas • Is an order to appear at a particular place and time • A subpoena duces tecum requires the person to produce certain documents or things • The information sought: • Must be relevant to a lawful agency investigation • Must not be unreasonably burdensome • Must not be privileged

  17. Search and Seizure • An agency will want to conduct a surprise search of an enterprise and seize any evidence of wrongdoing

  18. Adjudication • To hold a formal hearing about an issue and then decide it • Most adjudications begin with a hearing before an administrative law judge (ALJ) • Administrative law judge (ALJ): An agency employee who acts as an impartial decision maker

  19. Limits on Agency Power • Four primary methods of reining in these powerful creatures • Statutory • Political • Judicial • Informational

  20. “An understanding of how law is made is the first step toward controlling that law.”

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