LREB Chap 5

administrative law

Administrative law is the 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.

limits on administrative agencies mainly come from

An important and fundamental part of administrative law is the limits judicial review imposes upon activities of administrative agencies. congress and APA

3 ways to get info:

FOIA Sunshine law sunset law

enabling statute

creates an agency that can then delegate the power to issue rules, regulations, and guidelines to carry out the statutory mandate

formal rule making

when an agency makes rules, it must consider the record of the trial- type agency hearing and include a statement of findings and conclusions

defamation requires 4 things:

"Defamation" is a catch-all term for any statement that hurts someone's reputation. Written defamation is called "libel," and spoken defamation is called "slander." Defamation is not a crime, but it is a "tort" (a civil wrong, rather than a criminal wrong). intent untruth publication harm

Disclosure of Information

- congressionally required public disclosure enhances oversight of agency activities. -requiring admin agencies to disclose their info about their actions makes them more accountable to public -3 statutes that enhance public oversight and awareness of agency activities = FOIA, Privacy act, gov't in sunshine act

privacy act

-governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies. -The Privacy Act requires that agencies give the public notice of their systems of records by publication in the Federal Register. -The Privacy Act prohibits the disclosure of information from a system of records absent the written consent of the subject individual, unless the disclosure is pursuant to one of twelve statutory exceptions. aka admin agencies cannot share data -except national security

admin agencies

-protect the public but also make it harder to do business -limit their power by cutting their budget -also by having court system that doesn't back them up

tort law (3)

1. hurt intentionally 2. hurt negligently 3. strict liability torts (manufactured goods)

Limits on Administrative Agencies (4)

1. judicial review 2. legislative control 3. control by executive branch 4. disclosure of info

APA

Administrative procedure act: governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions. list 5 admin agencies -IRS, environmental agency, FDA, SEC (regulate ability to raise money), Federal Reserve, EEoC (for hostile work environments), social security -governs procedures that business and agencies have to go thru to do anything

Limits on Administrative Agencies

An important and fundamental part of administrative law is the limits judicial review imposes upon activities of administrative agencies. -good to have some limitations so don't have too much power

enabling statute

Congress breathes life to an agency A law that permits what was previously prohibited or that creates new. powers; esp. a congressional statute conferring powers on an executive. agency to carry out various delegated acts.

Operation of Administrative Agencies

Most administrative agencies perform three basic functions: (1) rulemaking, (2) enforcement, and (3) adjudication. interested in: budget people --> staff, more people = more power

OSHA

Occupational Safety and Health Administration (OSHA) is a federal organization (part of the Department of Labor) that ensures safe and healthy working conditions for Americans by enforcing standards and providing workplace safety training.

tort

a civil wrong that unfairly causes someone else to suffer loss or harm resulting in legal liability for the person who commits the tortious act, called a tortfeasor.

government in sunshine law

a law requiring certain proceedings of government agencies to be open or available to the public. -can close the door if involves issues of national security and sensitive personnel matters

sunset law

a law that automatically terminates a regulatory agency, board, or function of government on a certain date, unless renewed. -when your task is accomplished youre done/go home

judicial review

acts as a control or check by a court on a particular rule or order of an administrative agency. -the process by which the courts examine govt action -requirements = parties seeking to challenge agency action must have standing and must have exhausted their admin remedies -judicial review usually only available for final agency action

enforcement

admin agencies also compelled to disclose info, subject to constitutional limitations -limitations require that 1. investigation be authorized by law and undertaken for legit purpose, 2. the info sought be relevant , 3. demand for info be specific, 4. info sought not be privileged

hybrid rulemaking

agency follows certain procedures that are more formal than those the agency uses in informal rule making but dont compel full hearing that formal rule marking requires -results from combining informal procedures of APA with procedures specified by enabling statute

major rule

any rule that the office of mgmt and budget (OMB) is likely to result in 1. effect on economy of at least 100 million, 2. increase in costs and prices, 3. adverse effect on comp/employment/investment/etc

Administrative law

branch of public law that is created by admin agencies in form of rules, regulations, orders, and decisions to carry out the regulatory powers and duties of those agencies -admin agencies relieve legislatures of burden of creating legislation -congress may enact enabling statute that creates agency -establishment of separate bodies enables admin agencies to be staffed by individuals with expertise in field being regulated

limits on admin agencies

executive control: power of appointment, budgetary control, impoundment of monies appropriated, restructuring of executive agencies legislative control: power over budget, amendment of enabling statute, elimination of agency, enactment of guidelines judicial review: excess of authority, proper interpretation of applicable law, violation of constitution, violation of required legal procedure

Adjudication -

formal methods by which an agency resolves disputes. -once you have exhausted admin remedies, then can go to court -must go thru all of agency's steps before court

adjudication

formal procedure by which an agency resolves a matter -involves finding facts, applying legal rules to facts, and formulating orders -an order = whole or part of final disposition of agency

FOIA

freedom of information act: law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government. -can close the door if involves issues of national security and sensitive personnel matters -can require under FOIA request to force them to disclose info

Legislative Control -

includes control over the agency's budget and enabling statute. -congress can amend enabling statute to modify, increase or decrease an agency's authority

Control by Executive Branch -

includes the President's power to appoint members of the agency.

operation of admin agencies

most admin agencies perform 3 functions: 1. rulemaking 2. enforcement 3. adjudication

SEC

must disclose if top executives are buying/selling stock -ex: Inron

can you be sued for defamation?

no

exhaustion of remedies doctrine

prevents a litigant from seeking a remedy in a new court or jurisdiction until all claims or remedies have been exhausted (pursued as fully as possible) in the original one. The doctrine was originally created by case law based on the principles of comity.

Enforcement -

process by which agencies determine whether their rules have been violated. -ex: Loyola: if don't pay fees, withdrawn from university

Rulemaking -

process by which an administrative agency promulgates (promotes) rules of law. Legislative Rules (regulations) - substantive rules issued by an administrative agency under the authority delegated to it by the legislature. Interpretative Rules - statements issued by an administrative agency indicating how it construes its governing statute. -exempt from APA -ex: IRS Procedural Rules - rules issued by an administrative agency establishing its organization, method of operation, and rules of conduct for practice before the agency. -also exempt from APA and not law

informal rule making procedures of APA

require that the agency provide: 1. prior notice of a proposed rule, usually by publication in the federal register 2. an opportunity for interested parties to participate in rule making 3. publication of final draft containing concise general statement of rule's basis and purpose at least 30 days before its effective date

judicial review: questions of law

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

Ripe

ripeness refers to the readiness of a case for litigation; "a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." -ask for a ruling from an agency but the controversy must be real -must be real matter in controversy, not a "maybe"

Legislative Rules (regulations) -

substantive rules issued by an administrative agency under the authority delegated to it by the legislature. -in effect = "admin statutes" -issued by an agency that is able to make rules having the force and effect of law -most legislative rules are issued in accordance with informal rule making procedures of APA

Administrative agencies

they are government entities - other than courts and legislatures - having authority to affect the rights of private parties through their operations.

judicial review: questions of fact

when reviewing questions of fact, court uses 1 of 3 standards 1. arbitrary and capricious test: when informal rule making has occurred, requires only that the agency had a rational basis for reaching its decision 2. substantial evidence: used when agency had a formal hearing 3. unwarranted by the facts standard: used rarely, permits courts to try the facts de novo