Common Law,

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CHAPTER 3
Common Law, Statutory Law, and Administrative Law
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Quote of the Day

• Progress everywhere today does seem to come so
  very heavily disguised as chaos.
• Joyce Grenfell, British actor

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Three Sources of Law
Common Law
Statutory Law
Administrative Law
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Common Law

• Judge-made law made up of all the decisions made
  by appellate courts.
• Two hundred years ago, almost all law was common
  law most new law is statutory.
• Common law predominates in tort, contract, and
  agency law it is important in property and
  employment law.
• Based on stare decisis, meaning let the decision
  stand (previous decisions are generally upheld
  in similar cases.)
• Incorporates predictability and flexibility.

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Statutory Law

• Most new law is statutory, that is, it is
  legislation passed by either a state legislature
  or the Congress of the United States.

• Citizens who vote have some control over
  statutory law. We elect the state congressional
  representatives and the United States Senators
  and Representatives.

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How New Laws are Made

• Any member of Congress (Senator or
  Representative) can initiate a bill, or proposed
  law.

• A bill is debated in a committee in the house
  where it was introduced.

• From the committee, it goes to the full house for
  a vote.

• If it passes both houses this way, it goes to the
  President for his signature.

• A Presidents signature turns a bill into law.

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How New Laws are Made
If vetoed, it goes back to the Congress, where it
must pass both houses by a 2/3 majority.
Once both houses pass the compromise bill, it is
sent to the President to be signed.
If signed, the bill becomes law.
If the second House of Congress made any changes,
or amendments, to the bill, it must go to a
Conference Committee, made up of members of both
houses. Here, they work out compromises between
the two different versions of the bill. The
compromise bill then goes back to both houses for
a final vote.
House of Representatives
Senate
After it passes committee, the bill goes to the
full body of that house for a vote.
If it passes there, it goes to the other house
(House to Senate or Senate to House).
It is assigned to a committee and the process
repeats.
A bill, or proposed law, is introduced in the
House of Representatives or the Senate and then
assigned to a committee for discussion and voting.
Major Senate Committees
Major House Committees
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Statutory Interpretation

• Sometimes wording is ambiguous, either by
  oversight, or intentional -- as a compromise.

• New laws must be interpreted by the courts.
• Plain Meaning Rule -- the courts must use the
  common sense definition of words.
• Legislative History and Intent -- sometimes the
  court can look to the reasons behind the law to
  determine the legislators intent.
• Public Policy -- the courts will use accepted
  social policies, such as reducing crime or
  providing education to interpret a law.

• Once the law (statute) has been applied by the
  courts, its interpretation becomes a precedent to
  be used in future court cases.

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The Other Player --




Money

• In todays political climate, running a campaign
  for political office is an expensive endeavor.

• Financial contributions to candidates or
  political parties come from many sources. Some
  limits have been placed on contributions, but
  loopholes exist.

• Donors usually expect to receive some benefit,
  such as favored treatment in future legislative
  issues.

• Supporters of contribution limits aim to equalize
  the access to politics for rich and poor
  opponents claim that the First Amendment
  guarantees their right to support whomever they
  choose.

• The very green bottom line is, MONEY TALKS -- and
  it often talks loudly in the political arena!

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Administrative Law

• Federal agencies such as the Federal Aviation
  Agency (FAA) and the Federal Trade Commission
  (FTC) and the Bureau of Land Management, all have
  the power to make regulations which affect
  citizens and businesses.

• Agencies were -- and are -- created to fulfill a
  need. Someone needs to oversee changing
  technologies and practices and their effects on
  society. An agency is created when Congress
  passes enabling legislation, which describes a
  problem and defines the agencys powers.

• Agencies often have considerable power in their
  areas of specialty, sometimes leading to
  controversy. The Administrative Procedure Act
  regulates how agencies operate, in an attempt to
  reduce the controversy.

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Classification of Agencies

• Executive Federal Agency Part of executive
  branch, under the control of the President
  usually support the Presidents policies.

Internal Revenue Service (IRS)
Federal Bureau of Investigation (FBI)
Food and Drug Administration (FDA)
Nuclear Regulatory Commission

• Independent Federal Agency Not part of
  executive branch President does not have the
  power to fire the head of the agency.

National Labor Relations Board
Federal Communications Commission (FCC)
Environmental Protection Agency (EPA)
Securities and Exchange Commission
Federal Trade Commission (FTC)

• Are agencies too powerful??

• Are agencies too powerful??

• Are agencies too powerful??

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Power of Agencies -- Rulemaking

• Two types of rules
• 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.

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Power of Agencies -- Rulemaking

• Three types of rulemaking
• Informal rulemaking -- proposed rule must be
  published and public allowed to comment.
• Formal rulemaking -- must hold a public hearing
  before establishing the rule.
• Hybrid rulemaking -- some elements of both of the
  above -- perhaps the proposal and comment, with
  cross-examination, but not a full hearing.

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Power of Agencies -- Investigation

• Voluntary -- Some businesses freely give
  information and readily comply with agency
  recommendations.

• Subpoena -- an order to appear at a hearing and
  produce evidence, sometimes documents.
• Must be relevant to the investigation and under
  the agencys jurisdiction, or area of authority.
• Must not be unreasonably burdensome on the
  business.
• Must not be privileged this means that a
  corporate officer may not be required to
  incriminate himself.

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Power of Agencies -- Investigation

• Search and Seizure -- a legal search of a
  business, in order to take evidence of
  wrongdoing.
• Most require a warrant before the search.
• Some industries are closely regulated and may be
  searched at any time, with no warning.

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Power of Agencies -- Adjudication

• Adjudicate -- means to hold a hearing, then
  decide how to proceed with an issue.

• Procedures for adjudication
• A hearing before an administrative law judge.
• Parties have counsel, but there is no jury.
• Informal both sides present evidence.
• Judge makes ruling on testimony and evidence.

• If parties are unhappy with results
• Loser may appeal to an appellate board.
• Appellate board may make a de novo decision, and
  ignore the administrative law judges decision.
• Appeals go to a federal court.

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Limits on Agency Power

• Statutory Control
• The enabling legislation that created the agency
  places controls on it through requirements and
  restrictions.

• Political Control
• The President has control over agencies through
  political pressure and through nominations of
  agency heads.
• Congress controls the budgets of agencies. They
  can eliminate funding for any program or an
  entire agency.
• Congress can amend enabling legislation to place
  limits.

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Limits on Agency Power

• Judicial Review
• A party injured by an agency decision is entitled
  to an appeal in a federal court, after all appeal
  options are exhausted within the agency itself.

• Informational Control and the Public
• The Freedom of Information Act (FOIA) -- allows
  any citizen to request information from an
  agency.
• The Privacy Act -- prohibits agencies from giving
  information about an individual to other agencies
  without consent. There are some exceptions.

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Law is complex. The subject becomes less
baffling if we understand how society creates
law.