BUS – test 1 – Ch. 4

tort, contract, and agency law, and is very important in property, employment, and some other areas

no, but they generally do: stare decisis (let the decision stand)

*you have no duty to assist someone unless you created the danger

breaks precedent/break from innocent bystander law - now, a bystander could be held liable if he was the employer and the employee was in danger

change to bystander rule - when there is some sort of special relationship, you have a duty to try to stop the danger and exercise reasonable care to prevent harm (ex: babysitter, lifeguards, therapist, etc)

witnesses of certain violent crimes to REPORT the crime as soon as they can, if they can do so without endangering themselves or others - there is no obligation to try to prevent the crime or go to the aid of the victim

*more law is created by statue than by the courts

*this is the one part of the law over which we have control because we ELECT the legislators who pass state statues; we vote for the senators and representatives who create federal statutes

as long as it is not a decision based on the Constitution, yes

statutory

courts are called upon to explain precisely what the language means and how it applies to a given case

plain meaning rule, legislative history and intent, public policy

when a statute's words have ordinary, everyday significance, the court will simply apply those words - commonsense definition

the court will look at the law's history to determine the intent of the legislature; the court will examine committee hearings, reports, and the flor debates that we have seen

if the legislative history is unclear, courts will rely on general public policies, such as reducing crime, creating equal opportunity, and so forth

when the president vetoes a bill, congress has one last chance to make it a law: an override - both houses must pass the bill by a 2/3 vote for the bill to become law over the president's veto

passed by Congress, creating the Interstate Commerce Commission (ICC) - the first administrative agency

Congress passes statutes, but it has no personell to oversee the day to day working of a huge industry

agencies exist at the federal, state, and local level

executive and independent: some federal agencies are part of the executive branch, where others are independent

president has power to hire/fire

examples: IRS, FBI, FDA, NRC

president has no such removal power

examples: FIC, FCC, SEC, EPA

enabling legislation, which typically describes the problems that Congress believes need regulation, establishes an agency to do it, and defines the agency's powers

they make rules, investigate, and adjudicate

*one of the most important functions of administrative agencies

*the agency attempts to establish fair and uniform behavior for all businesses in the affected area

promulgate it

legislative and interpretive

the most important agency rules, and are much like statutes - an agency creates law by requiring bussinesses or private citizens to act in a certain way

*do not change the law; they are the agencies interpretation of what the law already requires

formal and informal

in the enabling legislation, Congress may require that an agency hold a hearing before promulgating rules; Congress does this to make the agency more accountable to the public

*opponents of the rule may cross examine the agency experts about the need for the rule and may testify against it

on many issues, agencies use a simple "notice and comment" method

*the agency must publish a proposed rule in advance and permit the public a comment period; during this period, the public may submit any objections and arguments with supporting date

*the agency must listen to objections and provide a written response

some companies jealously guard information, because corporate officers believe that disclosure would lead to adverse rule: agencies force disclosure through subpoenas

an order to appear at a particular place and time

requires the person to produce certain documents or other things

1. must be relevant to a lawful agency investigation
2. must not be unreasonably burdensome
3. must not be privileged (5th Amendment self incrimination protections)

when a particular industry is (blank), courts will assume that companies know they are subject to periodic, unannounced inspections - in those industries, an agency may conduct a search without a warrant and seize evidence of violations

to hold a formal hearing about an issue and then decide it

an administrative law judge - there is NO jury

an employee of the agency who acts as an impartial decision maker; this person MAKES the decision

*the losing party has the right to appeal to an appellate board within the agency

statutory control, political control, judicial review, and informational control

the enabling legislation of an agency has some limits - it may require that the agency use formal rule making or investigate only certain issues

*the Administrative Procedure Act imposes additional controls by requiring basic fairness in areas not regulated by the enabling legislation

the president's influence is greatest with executive agencies, but Congress "controls the purse" - no agency, executive or independent, can spend money it doesn't have

*Congress may decide to defund an agency

*Congress has additional control because it must approve presidential nominees to head agencies

*Congress may amend an agency's enabling legislation, limiting its power

an individual or corporation directly harmed by an administrative rule, investigation, or adjudication may generally have that action reviewed in federal court

*the party must first have taken ALL possible appeals within the agency itself and have suffered direct harm

the standard a court uses must take into account the facts and the law

courts generally defer to an agency's fact finding - as long as there is substantial evidence to support the fact decision, it will be respected

courts often, but not always, defer to an agency's interpretation of the law - if the agency's interpretation was reasonable, it was binding, even if the court itself might not have made the same analysis

all of us have some direct control over these administrative agencies: information

the Freedom of Information Act and the Privacy Act

passed by Congress and designed to give all of us (citizens, businesses, and organizations) access to the information federal agencies are using

*the idea is to avoid gov't secrecy

*any citizen may make a FOIA request to any federal gov't agency, which is simply a written request that the agency furnish whatever info it has on the subject specified

1. anyone is entitled to information about how the agency operates, how it spends its money, and what statistics and other information it has collected on a given subject
2. all citizens are entitled to any records the gov't has about them

Congress, the federal courts, or the executive staff at the White House

*since FOIA applies to federal gov't agencies, you may not use it to obtain info from state or local gov'ts or private businesses

FOIA exempts altogether 9 categories from disclosure: the most important exemptions permit an agency to keep confidential info that relates to CRIMINAL INVESTIGATIONS, INTERNAL AGENCY MATTERS (such as personnel or policy discussions), TRADE SECRETS OR FINANCIAL INSTITUTIONS, AN INDIVIDUAL'S PRIVATE LIFE, OR NATIONAL SECURITY

*an agency has 10 days to respond to the request (obligated to make a good faith effort)

statute that prohibits federal agencies from giving info about an individual to other agencies or organizations without written consent

*has overall reduced the gov'ts exchange of information about us behind our backs