Three Sources of Law

•Common Law

•Statutory Law

•Administrative Law

Common Law• Judge-made law; made up of all the decisions made by

appellate courts.• Two hundred years ago, almost all law was common law;

most new law is statutory.• Common law predominates in tort, contract, and agency

law; it is important in property and employment law.• Based on stare decisis, meaning “let the decision stand”

(previous decisions are generally upheld in similar cases.)• Incorporates predictability and flexibility.

Changes in Common Law• Over time, changes in society’s norms have an effect on

long-standing common law. An example of this is the law that applies to bystanders in emergencies.– Under common law, bystanders have no obligation to assist a

victim in an emergency.– Over time, courts have created exceptions, making employers

obliged to help an employee who is suddenly stricken with an emergency situation when the employer is present.

– Some courts now hold that anyone witnessing an extreme situation or if there is a special relationship, such as patient-therapist, should be required to help, though this is not universal.

Statutory Law◙ Most new law is statutory, that is, it is

legislation passed by either a state legislature or the Congress of the United States.

◙ Citizens who vote have some control over statutory law. We elect the state congressional representatives and the United States Senators and Representatives.

How New Laws are Made◙ Any member of Congress (Senator or

Representative) can initiate a bill, or proposed law.

◙ A bill is debated in a committee in the house where it was introduced.

◙ From the committee, it goes to the full house for a vote.

◙ If it passes both houses this way, it goes to the President for his signature.

◙ A President’s signature turns a bill into law.

How New Laws Are Made

A bill, or proposed law, is introduced in the House of Representatives or the Senate and then assigned to a committee for discussion and voting.

Armed Services

Agriculture Ways and Means

Banking, Finance, and Urban Affairs

Education and

Labor

Judiciary Committee

Aeronautical and Space Sciences

Armed Services

Judiciary Committee

Appropriation

Foreign Relations

After it passes committee, the bill goes to the full body of that house for a vote.

Major House Committees Major Senate Committees

If it passes there, it goes to the other house (House to Senate or Senate to House).

It is assigned to a committee and the process repeats.

If the second House of Congress made any changes, or amendments, to the bill, it must go to a Conference Committee, made up of members of both houses. Here, they work out compromises between the two different versions of the bill. The compromise bill then goes back to both houses for a final vote.

Once both houses pass the compromise bill, it is sent to the President to be signed.

If vetoed, it goes back to the Congress, where it must pass both houses by a 2/3 majority.

If signed, the bill becomes law.

House ofRepresentatives Senate

Conference Committee

Why Are Bills Proposed?◙ New issues or new worries – such as

employment discrimination and Internet privacy or copyright issues

◙ Unpopular judicial rulings – if Congress disagrees with a judicial interpretation of a statute, it may pass a new statute to “undo” the decision of the court, unless the decision at hand is based on the U.S. Constitution.

◙ Criminal law – must be set forth in clear terms through statutes rather than left to judicial interpretation.

Statutory Interpretation◙ Sometimes wording is ambiguous, either by

oversight, or intentional -- as a compromise.

◙ New laws must be interpreted by the courts.• Plain Meaning Rule -- the courts must use the common

sense definition of words.• Legislative History and Intent -- sometimes the court can

look to the reasons behind the law to determine the legislators’ intent.

• Public Policy -- the courts will use accepted social policies, such as reducing crime or providing education to interpret a law.

◙ Once the law (statute) has been applied by the courts, its interpretation becomes a precedent to be used in future court cases.

The Other Player --$ In today’s political climate, running a campaign for political

office is an expensive endeavor.

$ Financial contributions to candidates or political parties come from many sources. Some limits have been placed on contributions, such as those enacted in 2002, but loopholes still exist.

$ Donors usually expect to receive some benefit, such as favored treatment in future legislative issues.

$ Supporters of contribution limits aim to equalize the access to politics for rich and poor; opponents claim that the First Amendment guarantees their right to support whomever they choose.

Money

$ The very green bottom line is, MONEY TALKS -- and it often talks loudly in the political arena!

Administrative Law◙ Federal agencies such as the Federal Aviation Agency

(FAA) and the Federal Trade Commission (FTC) and the Bureau of Land Management, have the power to make regulations.

◙ Agencies were -- and are -- created to fulfill a need. Someone needs to oversee changing technologies and practices and their effects on society.

◙ An agency is created when Congress passes enabling legislation, which describes a problem and defines the agency’s powers.

◙ Agencies often have considerable power in their areas of specialty, sometimes leading to controversy.

◙ The Administrative Procedure Act regulates agencies, in an attempt to reduce controversy.

Classification of Agencies• Executive Federal Agency: Part of executive branch,

under the control of the President; usually support the President’s policies. Examples:

Internal Revenue Service (IRS)

Federal Bureau of Investigation (FBI)

Food and Drug Administration (FDA)

Nuclear Regulatory Commission

Federal Communications Commission (FCC)

◙ Independent Federal Agency: Not part of executive branch; President does not have the power to fire the head of the agency.

Federal Trade Commission (FTC)

Securities and Exchange Commission

National Labor Relations Board

Environmental Protection Agency (EPA)

The Administrative Procedure Act

◙ Passed in 1946 to bring uniformity and control to many federal agencies.

◙ Regulates how federal agencies make rules, conduct investigations, hold meetings and hearings, reach decisions and obtain and release information.

Power of Agencies -- Rulemaking

• Two types of rules– 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.

Power of Agencies -- Rulemaking

• Three types of rulemaking– Informal rulemaking -- proposed rule

must be published and public allowed to comment.

–Formal rulemaking -- must hold a public hearing before establishing the rule.

–Hybrid rulemaking -- some elements of both of the above -- perhaps the proposal and comment, with cross-examination, but not a full hearing.

◙ Voluntary -- Some businesses freely give information and readily comply with agency recommendations.

◙ Subpoena -- an order to appear at a hearing and produce evidence, sometimes documents.

• Must be relevant to the investigation and under the agency’s jurisdiction, or area of authority.

• Must not be unreasonably burdensome on the business.

• Must not be privileged; this means that a corporate officer may not be required to incriminate himself.

Power of Agencies -- Investigation

Power of Agencies -- Investigation

• Recalls – The US Product Safety Commission investigates hundreds of consumer products each year and urges a recall of products considered dangerous.

• Subpoena – an order to appear at a particular time and place to provide evidence; may be used to force disclosure

• Search and Seizure – a legal search of a business, in order to take evidence of wrongdoing.

– Most require a warrant before the search.– Some industries are closely regulated and may be

searched at any time, with no warning.

◙ Adjudicate -- means to hold a hearing, then decide how to proceed with an issue.

◙ Procedures for adjudication• A hearing before an administrative law judge.• Parties have counsel, but there is no jury.• Informal; both sides present evidence.• Judge makes ruling on testimony and evidence.

◙ If parties are unhappy with results• Loser may appeal to an appellate board.• Appellate board may make a de novo decision, and

ignore the administrative law judge’s decision.• Appeals go to a federal court.

Power of Agencies -- Adjudication

Limits on Agency Power• Statutory Control

– The enabling legislation that created the agency places controls on it through requirements and restrictions.

◙ Political Control• The President has control over agencies through

political pressure and through nominations of agency heads.

• Congress controls the budgets of agencies. They can eliminate funding for any program or an entire agency.

• Congress can amend enabling legislation to place limits.

Limits on Agency Power◙ Judicial Review

• A party injured by an agency decision is entitled to an appeal in a federal court, after all appeal options are exhausted within the agency itself.

• The court must consider the facts as stated by the experts in the agency and the law as interpreted by the agency.

◙ Informational Control and the Public• The Freedom of Information Act (FOIA) -- allows

any citizen to request information from an agency. • The Privacy Act -- prohibits agencies from giving

information about an individual to other agencies without consent. There are some exceptions.