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