Exam 2

comment period

agency must allow ample time for persons to comment on proposed rule. This allows interested parties the opportunity to express views. Can be made out in writing or orally in a hearing Agency must listen to comments but doesn't need to respond to all, just the significant ones. Agency responds by issuing a final rule with an explanation why there are no changes, or just modifies the rule.

Final Rule

agency submits final rule to the federal register. It must contain a "concise general statement of basis and purpose" and describe reasoning behind the rule. If major changes have been made, the agency must restart the process. Final rule is later compiled along with rules/regulations in Code of Federal Regulations and has legal binding effect (referred to as legislative rules)

Freedom of Information Act (1966)

requires federal government to disclose certain records to any person on request, even if no reason is given for the request (some exception such as gov secrets)

federal register

A daily publication of the executive branch that prints government orders, rules, and regulations

entrapment

A defense in which a defendant claims that he or she was induced by a public official to commit a crime that he or she would otherwise not have committed. *under cover police officers *to succeed, both suggestion and inducement must take place; cop cannot offer drugs, but if they are offered it counts

preemption

A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local laws.

statute of limitations

A federal or state statute setting the maximum time period during which a certain action can be brought or certain rights enforced. with some exceptions (murder), these apply to crimes just as they do civil wrongs **A government must initiate criminal prosecution within a certain number of years- if criminal action is brought after statutory time period has expired, accused can raise statute of limitations as defense

exclusionary rule

A rule that prevents evidence that is obtained illegally or without a proper search warrant—and any evidence derived from illegally obtained evidence—from being admissible in court. Supreme court made exclusionary rule applicable to states in Mapp V Ohio (1961) It makes any evidence obtained outside of law inadmissable in court Was created to protect the accused rights and deter police from conducting warrantless searches or engaging in misconduct.

fruit of the poisonous tree

Evidence derived from illegally obtained evidence Example: If a confession is obtained after an illegal arrest arrest: poisonous tree confession: tainted by tree- fruit illegal act on officials part: poisonous tree evidence gained from act: fruit

6th amendment

Guarantees the 1: right to a speedy/ public trial 2: impartial jury in criminal cases with counsel (lawyer) 3: right to cross examine. 4: solicit testimony from witnesses in their favor

courts involvement in rulemaking

Individuals and corporate entities may go into the courts to make a claim that they have been, or will be, damaged or adversely affected in some manner by a regulation. The re viewing court can consider whether a rule: is unconstitutional; goes beyond the agency's legal authority; was made without following the notice‐and‐comment process required by the Administrative Procedure Act or other law; or was arbitrary, capricious, or an abuse of discretion. An agency head can also be sued for failing to act in a timely manner in certain cases. If a court sets aside (vacates) all or part of a rule, it usually sends the rule back to the agency to correct the deficiencies. The agency may have to reopen the comment period, publish a new statement of basis and purpose in the Federal Register to explain and justify its decisions, or restart the rulemaking process from the beginning by issuing a new proposed rule.

5th amendment

No one may be deprived of "life, liberty, or property without due process of law" due process of law double jeopardy self-incrimination

probable cause

Reasonable grounds for believing that a search should be conducted or that a person should be arrested. *needed to convince a judge to believe a search will reveal a specific illegality (supported by trustworthy evidence)

administrative law

The body of law created by administrative agencies in order to carry out their duties and responsibilities.

supremacy clause

The requirement in Article VI of the U.S. Constitution that provides that the Constitution, laws, and treaties of the United States are "the supreme Law of the Land."

overcriminalization

These crimes do not require intent/specific state of mind (strict liability) 4000+ criminal offenses in federal criminal code 10,000+ federal rules that can be enforced through criminal sanctions

responsible corporate officer doctrine

a court may impose criminal liability on a corporate officer who participated in, directed, or merely knew about a given criminal violation corporate directors and officers are personally liable for the crimes they commit, regardless of if it was for personal or corporate benefit

impact of chevron case on administrative law

chevron case explains whether courts should defer to an agency's interpretation of a statute giving it authority to act 1: Did congress directly address issue in statute? If so, statutory language prevails 2: If statute is silent or ambiguous, is agency's interpretation reasonable? If so, court should uphold agency's interpretation *agency's must meet formal legal standards for notice and comment rulemaking to be assured Chevron Deference

challenge administrative rules

comment portion of notice-and comment rulemaking. This allows persons time to comment their opinions/concerns about rules

criminal law relationship

crimes are offenses against society as a whole, so criminals are prosecuted by a public official (district attorney) rather than by victimes

reason that criminal amendments were created

criminal procedures are designed to protect the constitutional rights of individuals and to prevent the arbitrary use of power by government

warrantless searches in administrative law

in marshall V Barlows Inc., search warrant requirement does apply to administrative process Warrantless inspections if 1: highly regulated industry (guns/alcohol) 2: hazardous operations (coal miners) 3: emergency situations

purpose of administrative law judge

one who presides over an administrative agency hearing and has power to: 1: administer oaths 2: take testimony 3: rule on questions of evidence 4: make determinations of fact *unbiased adjudicator

exhaustion doctrine

party seeking court review must first exhaust all administrative remedies before filing suit

notice and comment rule making

rulemaking is a major function of administrative agencies. Regulations are sometimes said to be legislative because they have a binding effect, and thus violators can be punished. The APA established this (impetus can come from congress, agency, or private parties who peition). There are 3 steps in this

Administrative procedure act

sets forth rules and regulations that govern the procedures administrative agencies follow in performing their duties *provide judicial control over admin agencies *requires fair notice of changes in regulatory principles provides that courts should "hold unlawful and set aside" agency actions found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance w/ the law)

rulemaking

the actions of administrative agencies when formally adopting new regulations or amending old ones

why rules of criminal procedures exist

they are designed to guarantee constitutional due process to those individuals charged with a crime. Criminal procedures are designed to make sure that any given defendant receives due process and their constitutional rights are protected.

notice of proposed rulemaking

when a federal agency decides to create a new rule, the agency must publish a notice of the proposed rulemaking proceedings in the federal register and should state: 1: where/when proceedings will be held 2: agency's legal authority (enabling legislation) 3: terms/subject matter of proposed rule