Common Law, Statutory Law, and Administrative Law.
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Transcript of Common Law, Statutory Law, and Administrative Law.
Common Law, Statutory Law, and Administrative Law
Progress everywhere today does seem to come so very heavily
disguised as chaos.Joyce Grenfell, British actor
Common law Statutory law Administrative 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
Bystander cases◦ Bystander’s obligations - you have no duty to
assist someone in peril unless you created the danger
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
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
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
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
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
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
Administrative agencies use three kinds of power to do the work assigned to them: ◦ They make rules◦ They investigate◦ They adjudicate
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
Informal rulemaking◦ Proposed rule must be published and public
allowed to comment Formal rulemaking
◦ Must hold a public hearing before establishing the rule
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
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
An agency will want to conduct a surprise search of an enterprise and seize any evidence of wrongdoing
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
Four primary methods of reining in these powerful creatures◦ Statutory ◦ Political ◦ Judicial ◦ Informational