Business Law - Chapter 5

a final disposition made by an agency

order

In conducting an investigation, the Securities and Exchange Commission could: a. issue subpoenas requiring production of documents. b. conduct searches without a warrant. c. compel disclosure of privileged information. d. none of the above.

a

A person who is involved in a hearing with an administrative agency has a right to a trial by jury.

F

Administrative law is a branch of private law

F

Administrative agencies create more legal rules and adjudicate more controversies than all the legislatures and courts combined.

T

What are the 3 standards for reviewing questions of fact during judicial review?

1. arbitrary and capricious test - general standard; requires rational basis for decision 2. substantial evidence test - only for formal hearing; conclusions must be supported by relevant evidence that a reasonable mind would accept as support 3. unwarranted by the facts test - rare; permits court to try facts de novo (without reference to prior decisions)

When do legislative rules have force of law?

1. constitutional 2. within power granted to agency by legislature 3. issued according to proper procedure

How are questions of law reviewed during judicial review process?

1. determine whether agency has exceeded authority 2. has properly interpreted applicable law 3. has violated any constitutional provision 4. has acted contrary to the procedural requirements of law

During the enforcement process, how is discretion subject to constitutional limitations?

1. investigation authorized by law and undertaken for a legit purpose 2. info sought is relevant 3. demand for info is sufficiently specific and not unreasonably burdensome 4. info sought isn't privileged

What are the mandatory standards for adjudication?

1. notice of a hearing 2. give all interested parties the opportunity to submit and consider facts and arguments

Briefly discuss some limitations on administrative agencies.

Administrative agencies are limited by judicial review, by Congress' spending power, by the disclosure of information, etc. Legislative control comes through the passage of enabling statutes and approval of budgets. Executive control includes the president's power to appoint members of the agency, and judicial control can be found in the court's power to review a particular rule or order of an administrative agency. In addition, disclosure statutes, such as the Freedom of Information Act and the Government in the Sunshine Act, make agencies more accountable to the public.

Discuss the three basic functions of administrative agencies.

Administrative agencies get to exercise all three branches of the law. They exercise legislative power when they perform rulemaking, executive power when they enforce their rules, and judicial power when they adjudicate.

What is the legislative control on administrative agencies?

Congressional Review Act of 1996 - most rules are subjected to a new, extensive form of legislative control by submitting rules to each house of Congress and major rules need opportunity for Congress to disapprove

Courts, by adjudicating, formulate more policy than do administrative agencies.

F

Enabling statutes require that all administrative rules be made only after the opportunity for an agency hearing.

F

Interpretative rules establish an administrative agency's organization and method of operation

F

The Administrative Dispute Resolution Act requires agencies to use alternative dispute resolution.

F

The Negotiated Rulemaking Act requires agencies to use negotiated rulemaking.

F

What Acts protect the disclosure of information?

Freedom of Information Act Privacy Act Government in the Sunshine Act

Explain the process of judicial review upon the activities of administrative agencies.

Judicial review is used to ensure that the enforcement and adjudication procedures don't overstep their bounds. It can either compel agency action unlawfully withheld or set aside impermissible agency action. The court must review the whole record and may only set aside agency action if the error is prejudicial. The court decides all relevant questions of law, interprets constitutional and statutory provisions, and determines the meaning or applicability of the terms of an agency action.

What are the general requirements for judicial review?

Parties must have standing and have exhausted all other remedies - usually only available for final agency action

Administrative agencies promulgate three types of rules: legislative, interpretative, and procedural.

T

Judicial review acts as a check by a court on an order of an administrative agency.

T

Most legislative rules are issued in accordance with the informal rulemaking procedures of the Administrative Procedure Act.

T

Most matters that come before administrative agencies are resolved by informal adjudication.

T

The order of an administrative law judge may be appealed to the governing body of the agency.

T

To be valid legislative rules must not exceed the actual authority granted to the agency by the enabling statute.

T

Unless there is good cause, an agency must provide notice of a proposed rule and give the public an opportunity to comment.

T

Compare the formal, informal, and hybrid rulemaking processes.

The formal rulemaking process involves interested parties presenting their viewpoints at a formal hearing on the record and the agency considers the rule or regulation on the basis of the evidence at the hearing. The agency must base its rules upon consideration of the record of the trial-like agency hearing and include a statement of "findings and conclusions, and the reasons or basis therefore, on all the material issues of fact, law, or discretion presented on the record. A hybrid form of rulemaking isn't a full hearing because you're limited to cross-examination on a couple key issues - it's just the midway point between formal and informal. The informal process is where interested parties can state their viewpoints by submitting written comments to the agency and the agency considers the written documents and other information they think is relevant. The agency must provide prior notice of a proposed rule-usually by publication in the Federal Register, an opportunity for interested parties to participate, and publication of a final draft containing a concise general statement of its basis and purpose at least 30 days before the rule's effective date.

Define the three types of rules promulgated by administrative agencies.

There are procedural rules, interpretative rules and legislative rules. Procedural rules establish the organization, method of operation and rules of practicing for the administrative agency and they are nonbinding. Interpretative rules are statements indicating the construction of its governing statute and are also nonbinding, but they're persuasive. Finally, legislative rules are really just regulations and are substantive and binding.

Before OSHA can issue a regulation regarding safety in the workplace, it must: a. provide an opportunity for interested parties to participate in the rulemaking. b. determine that Congress supports the regulation. c. publish the regulation in the Code of Federal Regulations. d. all of the above.

a

What is the purpose of the Administrative Procedure Act (APA)?

address the issue of all 3 branches of gov having consolidation of power in administrative agency

formal methods by which an agency resolves disputes

adjudication

government entity having authority to affect the rights of private parties - regulate matters involving national safety, welfare, and convenience (national security, taxation, currency, elections, etc)

administrative agency

branch of public law that is created by administrative agencies in the form of rules, regulations, orders and decisions to carry out the regulatory powers and duties of those agencies

administrative law

entire set of activities engaged in by administrative agencies while carrying out their functions

administrative process

In _____ rulemaking, the agency must base its rules upon consideration of the record of the agency hearing and include a statement of findings and conclusions on all material issues. a. informal b formal c. hybrid d. none of the above

b

The decision of the administrative law judge: a. is not subject to review by the courts. b. can be set aside by the courts if the ALJ made a prejudicial error. c. will automatically be reviewed by the agency. d. none of the above.

b

In exercising judicial review, the court may: a. compel agency action unlawfully withheld. b. set aside impermissible agency action. c. both a and b. d. none of the above.

c

Rules issued by an administrative agency which are in effect "administrative statutes" are: a. interpretative rules. b. procedural rules. c. legislative rules. d. judicial rules.

c

A decision by an administrative agency may be overturned if the agency: a. exceeded its authority. b. acted arbitrarily or capriciously. c. reached conclusions not supported by substantial evidence. d. all of the above.

d

Federal administrative agencies are charged with which of the following? a. Citizenship and naturalization b. Environmental protection c. Telecommunications d. All of the above

d

In exercising its adjudicative power, an agency may: a. impose a fine. b. seize property. c. revoke a license. d. all of the above.

d

In exercising judicial review the court will inquire into whether the agency has: a. exceeded its authority. b. properly interpreted the applicable law. c. acted contrary to the procedural requirements of the law. d. all of the above.

d

Limits placed on administrative agencies include: a. judicial review of agency actions. b. appointment of administrators by the president. c. control of the budget by Congress. d. all of the above.

d

The legislature can exercise control over administrative agencies by: a. its budgetary power. b. by amending the enabling statute. c. changing an agency rule by specific legislation. d. all of the above.

d

Which of the following are considered to be basic functions of most administrative agencies? a. To make rules b. To enforce the law c. Adjudication d. All of the above

d

Which of the following is not an administrative agency? a. Food and Drug Administration b. Equal Employment Opportunity Commission c. Consumer Product Safety Commission d. All of the above are administrative agencies.

d

Which of the following would not have to be disclosed under the Freedom of Information Act? a. National defense secrets b. Records of an agency's internal practices c. Trade secrets d. None of the above would have to be disclosed.

d

issued by an administrative agency indicating its construction of the statutes and rules that it administers - not binding but substantial weight - exempt from APA

interpretative rules

substantive rules issued by an administrative agency under the authority delegated to it by the legislative

legislative rules

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

procedural rules