Legal Enviro Ch 5 & 6

process by which an administrative agency promulgates rules of law

any "agency statement of general or particular applicability and future effect designed to implement, interpret or prescribe law or policy, or describe the organization, procedure, or practice requirements of an agency"

have the force and effect of law

Interpretations, policy, statements, guidelines, rulings. They do not carry the force and effect of law.

rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practice before it

1. Informal (most common)
2. formal
3. hybrid
4. Direct final rule
5. negotiated

1. notice (publication in federal register)
2. Comment period
3. issuance of Final rule (effective date normally 30 days following publication in federal register)

formal methods by which an agency resolves disputes

1. create rules to implement laws passed by Congress
2. Conduct investigations to ensure compliance

key questions
1) Does agency action fail to accord with the APA?
2) Does action exceed Congressional authority?

clear error of judgment • occurs when:
1) agency has relied on factors which Congress has not intended it to consider
2) entirely failed to consider an important aspect of a problem,
3) offered an explanation its decision that runs counter to the evidence before the agency, or
4) is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Basically, the agency needs to only supply an adequate explanation

1. Is congressional intent clear?
2. If not, the court must put off to the agency provided its position "is based on a permissible construction of statute"

conduct forbidden by public law in the interest of protecting society and made punishable by the govt in a judicial proceeding it brings

1. Actus reus - the wrongful act itself; the punishable conduct
2. Mens rea - the state of mind or intent with which the wrongful act is committed; action done with a culpable state of mine

The main difference between common law and statutory law is that common law is based on past judicial opinions, while statutory law is based on current statutes (written laws)

Employer can be responsible for activity
1. committed by employees
2. within scope of employment
3. at least in part for the benefit of employer

Scope of employment
1. Was the activity done on the employer's [company's] behalf in the employee's general line of work?
2. Is there a some rational relationship between the employee's criminal act and their duties?

- white collar crimes
- variety of non-violent financial crime, especially committed by deceit, breach of trust, or corruption

offering money or property to a public official to influence the official's decision

intended to prohibit the bribing of forge in officials for business overseas

Defendant must act with intent (which can be willful ignorance) in making payment to foreign official to obtain or retain business

grease payments (facilitate or expedite non discretion routine govt action), local law defense (payment is written under local written law but not custom), reasonable and bona fide expenditure

anti-organized crime statute to aid federal prosecution

1. self reporting
2. cooperation
3. restituion
4. preventative measures

(1) Have standards and procedures to detect and deter criminal activity(2) Engagement of senior management(3) Regular training (4) Oversight of employees with history of ethical lapses(5) Monitoring, auditing and evaluating effectiveness(6) Encouraging/rewarding and disciplining(7) Responding to discovery of concerns

Fines, restitution, probation, barred from activities or compelled compliance and oversight, and forfeiture