BLAW 371 – Exam 2 (CHPT 4, 17, 19)

make minor changes in order to make it fairer, more accurate, or more up-to-date

sign or give formal consent to (a treaty, contract, or agreement), making it officially valid

Article I, Section 8, Clause 1: Gives Congress the right to regulate interstate commerce between states. Gibbons vs. Ogden expanded this power to regulate all activities that "substantially affect" interstate commerce. This provision has had a greater impact upon business than any other part of the constitution.

Article I, Section 8, Clause 3: Constitution lists specific Congressional powers and grants; Power "to make all Laws which shall be necessary and proper for carrying into Execution the forgoing Powers..."; This power, with the Commerce Clause, provides strong Congressional control of commerce; Most things are necessary and proper.
(Gibbons vs. Ogden)

dealt with a transportation monopoly on the Hudson River (gives power to the Supreme Court)

EXPANDS Congress's power

First 10 amendments to the Constitution

Freedom of speech, religion, and press

Federal controls on production of wheat: Farmer Filburn produced 239 bushels more than he was allowed -- sold none. He was fined and ordered not to plant more. Filburn argued that production was used to feed his chickens and cows for making bread - all consumed on the farm - No commerce. HELD: Although this appears to be "intrastate" and "trivial," all small farmers together would impact "interstate commerce" and "market conditions." Congress may regulate all production.

Can Congress establish a National Bank? COURT HELD: Yes, it is constitutional under the Necessary and Proper Clause. Maryland wanted to regulate the National Bank. COURT HELD: No, under the Supremacy Clause, Congress has the power.

A system that allows each branch of government to limit the powers of the other branches in order to prevent abuse of power

Communication in the form of advertising. It can be restricted more than many other types of speech but has been receiving increased protection from the Supreme Court.

A 2010 landmark Supreme Court case that ruled that individuals, corporations, and unions could donate unlimited amounts of money to groups that make independent political expenditures.

speech that government may not prohibit or punish under the First Amendment guarantee of "freedom of speech"

Libel, obscenity, fighting words, and commercial speech, which are not entitled to constitutional protection in all circumstances.

A written defamation of a person's character, reputation, business, or property rights.

prohibits unreasonable searches and seizures of persons or property

of or pertaining to an individual's right to prohibit personal information from being divulged to the public

The situation occurring when an individual accused of a crime is compelled to be a witness against himself or herself in court. The Fifth Amendment forbids self-incrimination.

fair treatment through the normal judicial system, especially as a citizen's entitlement.

Katz vs. US (Katz Call) A persons right to privacy exists when 1. a person exhibits actual expectation of privacy (subjective) and 2. The expectation must be one that society is willing to accept as reasonable. (objective)

Due Process rights, prohibits self-incrimination

the right of government to take private property for public use

Federal law is supreme over state law

the equal application of the law regardless of a person's race, religion, political beliefs, or other qualities

Constitutional requirement that governments act reasonably and that the substance of the laws themselves be fair and reasonable; limits what a government may do.

Constitutional requirement that governments proceed by proper methods; limits how government may exercise power.

A constitutional amendment giving full rights of citizenship to all people born or naturalized in the United States, except for American Indians.

Executive, Legislative, Judicial

Prohibits cruel and unusual punishment

The taxing power of the federal government is nearly unlimited. Taxes may be used to raise revenues and to regulate and may be punitive in nature.

a state cannot impose taxes upon persons passing through the state or coming into it merely for a temporary purpose...a state may not lay a tax on the "privilege" of engaging in interstate commerce...a state may not impose a tax which discriminates against interstate commerce either by providing a direct commercial advantage to a local business or by subjecting interstate commerce to the burden of "multiple taxation"

a process where each state with which a company has a nexus must have rules for dividing the company's income into an in-state and out of state portion. The state can only tax the in-state portion. The reasons for these limits is to prevent a company from being taxed on more than 100% of its income.

Administrative Agencies exists because:
--Speed
--Effectiveness
--Expertise
--Follow up/Quality control

congress saying "we are going to adopt a certain agency to act on rules and regulations"

Gives admin agency the right and power

departments, bureaus, or independent agencies whose primary mission is to impose limits, restrictions, or other obligations on the conduct of individuals or companies in the private sector

the body of law that regulates the operation and procedures of government agencies.

- Congress gives an agency power & authority through legislative delegation
- Congress delegates power to the agency to perform the regulatory purpose
- Congressional statute delegates powers to the agency through an enabling statute
- Agencies are created to have expertise and supervision over special problems about which Congress is concerned
-If voters/businesses unhappy with regulations, can pressure Congress to make changes

- Same force as statutes of Congress
- Agency usually must give public notice of these rules and give parties opportunity for comment

example : Auto dealer can't change the rules and regulations for the DOT

- Statements issued by an agency to give guidance interpreting a substantive rule or a statute
- These rules may be created without public notice

example: Reproductive rights - does this mean pregnancy or more than? - define "rights" so there are no discrepancies

- Rules that outline the method of agency operation
- Procedures used to deal with the public regarding enforcement, investigation & adjudicatory review

example : HR violation - sexual harassment - must file claim within certain time limit

1. Submit proposed rule to public for comment
2. File in federal register - 90 days to comment
3. Final rule - agency reviews comments

A publication of the U.S. government that prints executive orders, rules, and regulations.

1946 Act requiring bureaucratic agencies to appeal to the affected parties before adopting new policies. Legislative check on Bureaucracy.

- Formal agency process under APA rules
- Similar to those followed in a trial
- Business must respond to a complaint that alleges violation of agency regulation.
- Administrative Law Judge (ALJ) presides.
- ALJ is a civil service employee who is usually an attorney.
- Witnesses may be cross examined.
- Less formal than a court trial
- Hearing must meet due process guarantees of the Constitution.
- But no right to jury trial

An official who presides at a trial-like administrative hearing to settle a dispute between an agency and someone adversely affected by a decision of that agency.

The process by which an administrative agency formally adopts a new regulation or amends an old one.

hire people to measure, investigate and mare sure everything goes as it should.

there are many regulations because each type of business has its own regulations.

limit the amount of information that a firm can obtain about a consumer and specify how that information can be used or shared

Allows the court to determine the constitutionality of laws

Unless agency decisions are "arbitrary, capricious or manifestly contrary" to statute, regulations will be given deference.

Chevron deference, or Chevron doctrine, is an administrative law principle that compels federal courts to defer to a federal agency's interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer.

Agencies have array of enforcement tools in civil and criminal penalties, plus the use of injunctions

Possible sanctions:
- Prohibitions, requirements, limitations
- Withholding of relief, penalties & fines
- Destruction, taking, seizing, withholding of property
- Assessment of damages, reimbursements, restitution, compensation, costs, charges or fees
- Requirement, revocation, suspension of license

i.e. adjudicatory hearings. Businesses sometimes request a jury at an administrative hearing

i.e. tests, inspections, permits, negotiations, advice, settlements

Consists of laws and organizations designed to ensure the rights of consumers as well as fair trade competition and the free flow of truthful information in the marketplace.

A law that requires all committee-directed federal agencies to conduct their business regularly in public session.

Gives all citizens the right to inspect all records of federal agencies except those containing military, intelligence, or trade secrets; increases accountability of bureaucracy

informs citizens about what information is collected about them and how that information is used. It requires that unless an exception applies, notice and prior consent are required before an agency can disclose information that concerns and identifies an individual.

- The agency has sufficiently explained the facts and its policy concerns
- Those facts have some basis in the agency's record.
- On the basis of those facts and concerns, a reasonable person could reach the same judgments the agency has reached.

unreasonable; based on one's wishes or whims without regard for reason or fairness

Suggests product successfully performs the advertised function or yields the advertised benefit. But includes no suggestion of scientific proof

Suggests that product's effectiveness or superiority has been scientifically established

legislation passed in 2010 aimed at reforming the banking industry and offering consumers greater protection

An act which requires lenders to inform borrowers of all direct, indirect and true costs of credit.

industry wide rules that define unfair practices before they occur

If a company sells merchandise by mail, it must ship goods in the time stated in its ads

The FTC's Trade Regulation Rule Concerning the Labeling and Advertising of Home Insulation. By standardizing the insulation capacity of insulating materials, the FTC helped consumers compare different products offered by different companies.

focuses on websites, online services, and apps directed at children under age 13. It requires site and service operators to obtain parental consent before collecting personal information about a child, including photos and IP addresses.

The main federal agency designed to enforce consumer protection laws

spells out what kinds of marks (including brand names) can be protected and the exact method of protecting them

Advertising that misleads consumers, either by making unjustified claims regarding a product's composition, qualities, sponsorship, or performance or by omitting a material fact concerning the product's composition, qualities, sponsorship, or performance.

Gives all applicants the same rights. Credit providers may not discriminate based on: Age, Social Security, Housing loans.

gives consumers the right to request a free copy of their credit report every year.

Prohibits unfair, abusive, and deception methods of collecting debt

Law that grants consumers to the right to know who requests to view their credit report over the past year

provides standard terms for leases of personal property, for personal or household purposes, not for business use. The lease must have an obligation of no more than $50,000. Apartment leases and car rentals are not covered.

requires lenders to fully inform consumers about all costs of a credit purchase before an agreement is signed

Phase 1: bandages, etc.
Phase 2: Medical equipment that diagnoses different things but does not enter the body (Xray Machine, CT scanner, etc.)
Phase 3: Invasive to the body - Pacemaker, IUD, stint, artificial knee, etc

Requires the FDA to approve drugs based on their proven effectiveness, not just their safety