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administrative law
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is regulatory law- its is recognition by government that markets/entities/individuals will not be able to check and regulate themselves.
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administrative agencies
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were created in order to keep up with the pace of the developing country and the knowledge required to regulate all of the different activities of modern American life.
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functions of administrative agencies
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1. rule making
2.enforcement
3. adjudication of controversies
2.enforcement
3. adjudication of controversies
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rule making
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the process by which an administrative agency enacts or promulgates rules of law.
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what is a rule?
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it is the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or process law or policy.
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legislative rule
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rules issued by an agency having the ability, under a legislative delegation of power, to make rules having the force and effect of law
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informal rule making procedures
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1. prior notice of proposed rule( usually in fed. register)
2. opportunity for interested parties to participate in rule making
3. publication of a final draft containing a concise general statement of the rules basis purpose at least 30 days before its effective date.
2. opportunity for interested parties to participate in rule making
3. publication of a final draft containing a concise general statement of the rules basis purpose at least 30 days before its effective date.
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formal rule making
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the enabling statue require the agency to hold trail-like hearings- the agency must make findings and conclusions, with reasons and basis- based on all the material issues of fact, law, or discretion presented on the hearing record
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hybrid rule making
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combination of the informal and formal
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interpretative rules
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-statements issued by the agency as to how it construes its own statutes
-exempt from notice and comments requirements
-not binding on the private parties or courts
-may be persuasive depending on whether it is thorough, consistent with earlier and later pronouncements, and valid in reasoning
-exempt from notice and comments requirements
-not binding on the private parties or courts
-may be persuasive depending on whether it is thorough, consistent with earlier and later pronouncements, and valid in reasoning
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procedural rules
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- establish the rules of conduct for practice before the agency
- deal worth business hours, who may appear before the agency, hearings and methods of despoitiions, conferences, interrrogate
- deal worth business hours, who may appear before the agency, hearings and methods of despoitiions, conferences, interrrogate
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enforcement
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*Investigation of conduct to determine whether or not the enabling statute or the legislative rules have been violated. Agency may compel the disclosure of information; but, pursuant to constitutional limitations and other lawful limitations(ex. Privileges).
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adjudication
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-may be informal
- mediation, conciliation or arbitration-Formal (hearing)
-Involves he finding of facts, applying legal rules to facts, and formulating orders.
-always on notice to all parties-parties have the opportunity t submit facts, arguments, offers of settlement or proposals of adjustment
-an administrative law judge presides over the hearing. Finder of fact and law
.-orders: may contain, penalties, fines, seizing of property, assessment of damages,restitution, compensation, fees; or, the act of requiring, revoking or suspending a license
-orders are final unless appealed-failure to comply subjects the party to statutory penalties.
- mediation, conciliation or arbitration-Formal (hearing)
-Involves he finding of facts, applying legal rules to facts, and formulating orders.
-always on notice to all parties-parties have the opportunity t submit facts, arguments, offers of settlement or proposals of adjustment
-an administrative law judge presides over the hearing. Finder of fact and law
.-orders: may contain, penalties, fines, seizing of property, assessment of damages,restitution, compensation, fees; or, the act of requiring, revoking or suspending a license
-orders are final unless appealed-failure to comply subjects the party to statutory penalties.
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judicial review
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the process by which the courts examine govermental actions
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question of law
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a determination of whether the agency has
-exceeded its authority-properly interpreted the applicable law
-violated any constitutional provisions
-acted contrary to the procedural requirements of law
-exceeded its authority-properly interpreted the applicable law
-violated any constitutional provisions
-acted contrary to the procedural requirements of law
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Informal Ajudication
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if the agency had a rational basis ( was not arbitrary and capricious) for reaching its decision, the agency determination will stand
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Formal Adjudication
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if the agency relied on such evidence as a reasonable mind might accept as being adequate to support a conclusion
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unwarranted by the facts finding
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allows the court to try the issue de novo- must be available under the enabling statute
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legislative control
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budgetary powers (restrict or expand by granting of funds)
- amendment of the enabling statute
-completely eliminating the agency
-establishment of general guidelines
-by enacting specific legislation that would reverse the agency rule or decision
-oversight committees
-confirmation power on appointments
- amendment of the enabling statute
-completely eliminating the agency
-establishment of general guidelines
-by enacting specific legislation that would reverse the agency rule or decision
-oversight committees
-confirmation power on appointments
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executive control
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- budgeting powers
-appointment powers
- abolishing, combining or altering the executive agencies
-appointment powers
- abolishing, combining or altering the executive agencies
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Disclosure of Information
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makes the agencies more accountable to the public ex the public can see the records
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Government in the Sunshine Act
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- provides for open to the public meetings of many federal agencies
-applies to multi-member bodies whose members are appointed by the president with the consent of the Senate*SEC, FTC, FCC, CONS PROD SAF. COMM.,
-Agencies may close the meetings on same grounds as FOIA-SEC and FED. RES.
- may close meetings if disclosure would lead to speculation and endangerment of financial institutions
-applies to multi-member bodies whose members are appointed by the president with the consent of the Senate*SEC, FTC, FCC, CONS PROD SAF. COMM.,
-Agencies may close the meetings on same grounds as FOIA-SEC and FED. RES.
- may close meetings if disclosure would lead to speculation and endangerment of financial institutions
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Crimes are public wrongs
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- crimes involve 'the state" crimes involve some "harm to society" and not just harm to certain individuals
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ex post facto laws
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a law enacted by a legislature that retroactively changes the legal consequences of actions that were committed before the enactment of the law
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Vagueness and Overbreadth
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challenge may be made either on the language of the law or on the method in which it is applied
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overly vague statutes
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A law is too vague if an Individual of common intelligence would have to guess at the meaning of law
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Over-broad statutes
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a law is over broad and can be struck down by the courts if it substantially prohibits conduct protected by the U.S constitution
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who brings the action?
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society through either the federal government or a state government
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Actus Reus
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the wrongful act or omission that comprises the physical components of a crime. the physical acts that make up a crime
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Mens Rea
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the mental element required to constitute a crime
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Criminal Negligence
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the failure to use reasonable care to avoid consequences that threaten or harm the safety of the public and that are the foreseeable outcome of acting in a particular manner
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Recklessness
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the state of mind accompanying an act that either pays no regard to injurious consequences or which, though foreseeing such consequences, persists in spite of such knowledge
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intentional
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done by intention or design, purposeful, calculated to reach a desired end
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Depraved indifference
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Conduct which is so reckless, wanton and deficient and lacking in regard for the lives of others as to warrant the same culpability as the individual who actually commits a crime.
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Strict Liability Crimes
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the defendant is held liable for a criminal offense he committed, even if mens rea is absent. Though the defendant did not intend any harm by his actions and was completely unaware that he was committing an illegal act, the doctrine of strict liability holds him liable for the criminal offenses committed.
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felony
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a crime punishable by imprisonment of more than one year or by death
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misdemeanors
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a crime punishable by not more than 1 year, probation, fines or community service
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homicide
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killing of one person by another
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Criminally Negligent Homicide
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defendant was speeding, ran a red light and hit a pedestrian
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manslaughter
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defendant drove recklessly hitting a pedestrian and causing him death
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intentional murder
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defendant desired to kill the victim and shot four times
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felony murder
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when a nonparticipant is killed during the commission of certain felonies
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assault and battery
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it is distinguished by degrees that are based on the defendants mental state, the seriousness of the injury inflicted and whether or not a weapon was used
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Offenses against property
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theft, larceny, robbery, embezzlement, false pretenses
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larceny
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the basic crime of stealing personal property is larceny
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robbery
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is a larceny from the person, actual taking of property from the personal possession of the victim effected by means of violence or intimidation
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embezzlement
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occurs when a person legitimately comes to possess the property of another and wrongfully appropriates it
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False Pretenses
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is the obtaining ownership of the property of another by making untrue representations of fact with intent to defraud.
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receiving stolen property
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the taking and accepting possession of stolen property delivered by another
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forgery
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is the false writing of a document of legal significance with intent to defraud
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extortion
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the wrongful collection of money or something else of value by anyone by mens of a threat. this kind of is like blackmail.
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burglary
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the breaking and entering unto the building of another or the remaining unlawfully with intent to commit a crime
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arson
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under common law, arson was the malicious boring of the dwelling of another
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bribery
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is the corrupt payment for official action. the payment an be in cash or in the form of goods, services that are valuable.
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perjury
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giving a false oath, either orally or in writing in a judicial or other official proceeding
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white collar crime
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non-violent- many white collar crimes are included within the statutory definitions of embezzlement and false pretenses- also tax fraud
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Mail and Wire Fraud
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federal law prohibits the use of the mails or any interstate electronic communications medium for the purpose of furthering a "scheme or artifice to defraud"
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Violations of antitrust laws
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antitrust law is a collection of federal and state government laws they regulate the conduct and organization of business corporations generally to promote fair competition for the benefit of consumers
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Violations of the Food and Drug Act
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prohibits any person or corporation from sending into interstate commerce any adulterated or misbranded food, drug, domestics, or related device
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environmental crimes
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for example the clean water act to wrongfully discharge of pollutants into navigable waterways
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Violations of the Foreign Corrupt Practices Act 1977
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a strict requirement for American corporations to accurately document and account for all of the disposition of assets in their books and records
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RICO
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enacted as a result of the historical inability of prosecutors to successfully prosecute members of organized crime for substantive state crimes
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computer crime
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theft of moeny
-prograsm
-password trafficking
-prograsm
-password trafficking
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the nature of a criminal act
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to be guilty of a crime you must have acted, mental desire or intent to do so is insufficient however crime is punishable
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attempt at a crime
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desire/preparation/affirmative act
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Factual Impossibility
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guilty of attempt
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Legal Impossibility
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usually acknowledged as a valid defense. If the defendant completes all of his intended acts, but those acts do not fulfill all the required elements of a crime, there could be a successful "impossibility" defense
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conspiracy
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separate offense than the intended substantive offense- requires two or more people working together
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Entrapment
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one common technique of criminal investigation is the use of police officer playing the role of criminals
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lack of capacity
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Infants/children, insanity or mental disease or defect can be a complete defense. Intoxication can be a defense to certain crimes, but the mere fact of drunkenness is not ordinarily sufficient.
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procedure of criminal case
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- arrest/booking
-filing of complaint
-arraignment and preliminary hearing
-grand jury action
-motions
-pretrail
-sentence
-appeal
-filing of complaint
-arraignment and preliminary hearing
-grand jury action
-motions
-pretrail
-sentence
-appeal
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search and seizure
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this means that government cannot enter and search area where the individual has an expectation of privacy without a court issued warrant- 4th admendemt right
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double jeopardy
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Being tried twice for the same crime
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self-incrimination
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5th amendment - you urself can not testify agastinst urself
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speedy trial
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The Sixth Amendment tells the government that it must try defendants speedily.
-75 days in fed ct-180 days in NYS- felonies
-Permissible reasons for delay are excluded
-75 days in fed ct-180 days in NYS- felonies
-Permissible reasons for delay are excluded
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cross-examination
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The Sixth Amendment also says that the defendant shall have the right to confront witnesses against him.
-the right to be present in court
-the right to examine the witnesses and test their credibility
-the right to be present in court
-the right to examine the witnesses and test their credibility
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assistance of counsel
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6th admentment says criminals defendants have the right to legal aid/ lawyer
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cruel and unusual punishment
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The Eighth Amendment requires punishment to not be cruel and unusual. The punishment has to fit the crime.
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presumption of innocence
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-the prosecutor has the burden of proof beyond a reasonable doubt and that burden never shifts to the defendant.
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