BIZ LAW Chapter 4
Terms in this set (34)
-Judge-made law made up of all cases decided 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 "let the decision stand" (previous cases are generally upheld in similar cases).
-Predictable and Flexible.
-Under common law, bystanders have no obligation to assist a victim in an emergency.
-Over time, courts have created exceptions, making employers require to help an employee in an emergency, when employer is present.
-Some courts now require anyone who witnesses an extreme situation or if there is a special relationship, such as patient-therapist, should be require to help. Not universal.
-Most new law passed by either a state legislature or the Congress of the US.
-Voting for the reps that make the laws gives the people power.
-Most criminal law is statutory law.
How Laws are Made*
-Any member of Congress can propose a bill (a proposed statute).
-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, it goes to the prez for signature.
-Prez can sign and make the bill into law or veto bill.
-Congress can override the veto with 2/3 majority vote. This is called Congressional Override.
When the House of Reps and Senate make amendments to a proposed bill, the Conference Committee examines all the differences and tries to reach a compromise. The new modified bill is sent to each house for a new vote.
Why are bills proposed?
1. New issues or new worries (i.e. employment discrimination)
2. Unpopular judicial rulings - if Congress disagrees with a judicial interpretation, may pass law to undo decision.
3. Criminal Law
Bill of Right: Article VII
1963, Kennedy proposed a bill offering equal right to African Americans.
TItle VII concerned employment...
-unlawful to discriminate against any individual with respect to an individual's "race, color, religion, national origin, or sex"
In the House Judiciary Committee debates, a one word amendment was added...sex.
-Somtimes wording is not defined as a compromise.
1. Plain Meaning Rule- the courts must use the common sense of the definition of the rule.
2. Legislative History and Intent- Sometimes the court can look to the reasons behind the law to determine the intent of the law.
3. Public Policy- the courts use accepted social policies such as reducing crime or providing education to interpret a law.
- It's interpretation becomes a precedent to be used in future court cases.
-Interpretation and enforcement of the Civil Rights Amendment changed as the elected officials changed.
-Changes like this can effect elections.
The Other Player: MONEY
-Running a campaign is expensive.
-Financial contributions to candidates or political parties come from many sources. Limits set but loopholes exist.
-Donors expect to receive some benefit like favored treatment in future leg. issues.
-Supporter of contribution limits aim to equalize access to politics for rich and poor. Opponenets claim First Amendment guarantees their right to support whomever they want.
Federal Election Campaign Act (FECA)
In 1971, Congress passed the Federal Election Campaign Act which limited how much of his own money a federal candidate could spend.
-Three years later two more limitations added: How much a campaign as a whole could spend and how much anyone else could spend to promote a candidate.
Buckley v Valeo 1976
Supreme Court ruled that spending limits violate the First Amendment. The Court permitted Congress to limit campaign contributions but not to cap the amount a candidate could spend.
-All recent attempts by Congress to curb campaign spending have been unsuccessful because the Supreme Court finds most limits an unconstitutional violation of free speech.
-Federal Agencies such as the FTC, FAA (Aviation) all have the power to make regulations which affect citizens and businesses.
-Created to oversee changing technologies and practices and their effects on society.
-Agency created when Congress passes enabling leg that describes a problem and defines the agency's powers.
-Administrative Procedures Act (APA) regulates how agencies operate, in an attempt to reduce controversy over power agencies have.
Classifications of Agency
-Executive Federal Agency: Part of executive branch, under the control of the president; usually supports President's policies.
-Independent Federal Agency: Not part of exec branch, prez does not have power to fire head of agency. Has more influence on some businesses than the Congress, court and prez combined.
-Agencies also exist at state and local levels.
First agency created?
Interstate Commerce Commission (ICC) for rail system 1880's.
Power of Agencies: RULEMAKING
-Two types of Rules
* Legislative rules--require business and people to act a certain way.
* Interpretive rules--agency's interpretation of what the law requires.
-Two types of Rule Making
* Informal Rule Making --proposed rule must be published and public allowed to comment.
Formal Rule Making--must hold a public hearing before establishing the rule.
Power of Agencies - Investigation
-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 investigation and under agency jurisdiction.
*Must not be unreasonable burdensome on the business.
*Must not be privileged, meaning a corporate officer may not be require to incriminate herself.
-Search and Seizure - a legal search of a business in order to take evidence of wrongdoing.
* Warrant needed.
*Some industries may be searched anytime, w/out warning.
Three powers of Agencies
Power of Agencies - Adjudication
Procedures for Adjudication:
-Hearing before an Administrative Law Judge (ALJ).
-Parties have counsel, but no jury.
-Informal, both sides present evidence.
-Judge makes ruling.
If parties unhappy with results:
-Loser may appeal to an appellate board.
-Appellate board may make a DE NOVO Decision - ignore the admin law judge's decision.
-This decision can be appealed in federal court.
Subpoena and Subpoena Dulce Tecum
An order to appear at a particular time and place to provide evidence.
Requires them to bring specified documents.
How Congress creates a federal agency. Describe problem and establish agency to it, define its powers.
To hold a hearing about an issue and then decide how to proceed.
Limits on Agency Power 5
1. Statutory Control: Enabling leg places controls
2. Poltical Control: Prez nominates heads, Congress control budgets, and Congress can amend enabling leg.
3. Judicial Review: can appeal agency decision in fed court.
4. Information control and the Public: FOIA
5. Administrative Protection Act (APA)
Limits on Agency Power: Statutory Control
The enabling legislation that created the agency places controls on it through requirements and restrictions.
Limits on Agency Power: Political Control
-The President has control over agencies through political pressure and through nominations of agency heads.
-Congress controls the budgets agencies. Can eliminate funding.
-Congress can amend enabling legislation to place limit
Limits on Agency Power: Judicial Review
-A party injured by an agency decision is entitled to an appeal in federal court, after all appeal options are exhausted with the agency.
-Courts usually defer to the agency's fact finding and interpretation of the law and rarely substitute their own opinion for that of the agency.
Limits on Agency Power: Informational Control and the Public
-The freedom of Information Act (FOIA)-allows any citizen to request information from an agency.
-Privacy Act: Prohibits agencies from giving information about an individual to other agencies without consent. There are some exceptions.
Jason and toddler
Jason see child on train tracks but doesn't take him off tracks. Child is killed. Jason is not liable to help him.
Tarasoff v Regents Of The University of California 1976
Prosenjit Poddar killed Tatiana Tarasoff. Poddar told his psychologist Dr. Lawrence Moore at Berkley that he was going to. Parents sued Moore for not warning Tatiana. Dr. Moore did have a duty to Tutiana because the doctor had a special relationship with Poddar.
Griggs v Duke Power Co. 1971
Duke power Co required that applicants for higher paying positions have a high school diploma and pass a written test. As a result, whites got more jobs. No evidence showed that the requirement related to successful job performance. Case went to supreme court. Employment test must be job related. This perpetuates discrimination. The key is business necessity.
Fox TV Stations, Inc v Federal Communication Commission 2010
Cussing on Fox declared indecent, explicit and violated decency standards. Wanted to fine the network. Network protested arguing the utterances were fleeting and isolated. Also violated First amendment. Federal Court ruled FCC abused its discretion and infringed upon 1st Amendment. Reasoning: in the past the FCC had not penalized the occasional cuss word on live TV. Rule enforced unevenly.
Wards Cove Packing Co. v Atonio
Plaintiff were nonwhite workers in salmon canneries in Alaska. The canneries had two types of jobs, skilled and unskilled. Higher paid skilled positions were filled almost entirely by white workers hired through a union hall, out of state and had an English language requirement. Supreme Court ruled that empluer had to demonstrate that the requirement or practice served "legitimate employment goals."
-In 1991 Congress restored the Griggs v Duke Power ruling. Bush signed the bill for political reasons, of the 1992 election.
Legislative- Congress (Senate and House of Reps)
Judicial - Federal Courts
National Labor Relations Board
National Labor Relations Board (NLRB) - Employee rights unions and fair employment.
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