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