Business Law Chapter 4
Terms in this set (50)
the common law evolves in awkward fits and starts because courts attempt to achieve what 2 contradictory purposes?
"let the decision stand" it is the essence of common law, courts generally follow this
Administrative Procedure Act
which act controls how agencies do their work?
US inherited from England ____________ __________ saying you have no duty to assist someone in peril unless you created the danger
more law is created by _______ than by the __________.
_________ affect each of us every day in business, professional, and personal lives, we the people have control because we elect the legislators who pass this
a proposed statue, submitted to congress or a stat legislature, to become a law this must be voted on and approved by both houses then it is sent to the president and if he signs it and it becomes a law
most of the work is done in _________ the house has 25 of these and the senate has 20 of these
1) new issue, new worry 2) unpopular judicial ruling 3) criminal law
bills are proposed for one of these 3 reasons
1) race 2) color 3) religion 4) national origin, sex
1963 President JFK proposed legislation to guarantee equal rights, bill went to House Judiciary Committee, Title VII in congress said could not discriminate on these 4 things, Mr. Smith of Virginia said you needed to insert the word ____ after religion
some _________ of the civil rights supported the amendment because they believed that it would make the legislation less popular and cause Congress to defeat the entire Civil Rights bill, this strategy did not work
some senators raised new issue concerning 703(2) which prohibited segregating or classifying employees based on any of the protected categories, senator Tower was concerned about what?
President Johnson, The Civil Rights Act of 1964
Civil rights legislation passed in both houses but the bill was no longer the exact same so the House/ Senate made 2 bills, both appoint 2 or 3 members to try to make unified version, need to vote on it, finally which president signed it? (and doesn't receive enough credit for getting the bill passed) and what was the new law called?
1) have high school diploma 2) must pass standardized written test
Title VII of the Civil Rights act obviously prohibited an employer from saying to a job applicant we don't hire minorities, employers who routinely hired whites only found themselves LOSING lawsuits, North Carolina the Duke Power Co. required that applicants for higher paying, promotional positions must me what 2 requirements? result: more whites ended up meeting requirements than blacks
1) plain meaning rule 2) legislative history and intent 3) public policy
the 3 primary steps in a court's statutory interpretation
plain meaning rule
(common sense) when a statute's words have ordinary, everyday significance the court will simply apply those words, asks what does the law say? ex: law-speed limit 35mph, can't go over 35 mph
legislative history and intent
(previous cases) if the language is unclear, the court must look deeper, the court will examine committee hearings, reports, and the floor debates that we have seen
(what were we trying to fix/protect) if the legislative history is unclear, courts will rely on general public policies such as reducing crime, creating equal opportunity ect.
have become the 4th branch of government, they don't pass laws, have rules that have the same affect as a law, one of the most important functions is to MAKE RULES EX: try to sneak a gun on airplane is a rule but you still get arrested like it's a law
Interstate Commerce Commission
the first administrative agency, regulating freight and passenger transportation over the growing rail system, congress gave them the power to regulate rates, investigate harmful practices, hold hearings, issue orders, and punish railroads that did not comply
__________ exist at the federal, sate, and local level but we focus on federal because they have national impact and great power
the agency that the president has greater control over, he can fire the agency head at any time, this agency will rarely diverge far from the President's preferred policies ex: Internal Revenue Service, FBI, FDA
the agency that the president has no such removal power over ex: FCC, Federal trade commission, securities and exchange commission, national labor relations board, environmental protection agency
congress creates a federal agency by passing _______ _________, they describe the problems that congress believes need regulation, establishes an agency to do it , and defines the agency's power
to create a new rule is to _____________ it
1) legislative 2) interpretive
the 2 types of legislative rules which merely interpret existing statues
these are the most important agency rules and are like statutes, agency creates law by requiring businesses or private citizens to act in a certain way
rules that do not change the law, they are the agency's understanding of what the law already requires but cal still affect us all
agencies use a simple "notice and comment" method of rule making where agency publishes a proposed rule in advance and permits the public a comment period, public can submit any objections and arguments with supporting data and agency will make decision and publish final rule
formal rule making
congress requires that an agency hold a hearing before promulgating rules, congress does this to make agency more accountable to the public, after agency proposes a rule it holds a public hearing, opponents may cross-examine the agency experts EX: FDA peanut butter
an order to appear at the particular place and time, businesses and other organizations intensely dislike these and resent the government because they go through records and question employees
a subpoena _____ ______ requires the person to produce certain documents or things
1) relevant to agency investigation 2) not unreasonably burdensome 3) not privileged
the 3 limits on an agency's investigation, the information sought
a court will compare the agency's need to the information with the intrusion on the corporation
the fifth amendment, against self-incrimination means that a corporate officer accused of criminal securities violations may not be compelled to testify about his behavior EX: coke doesn't need to provide evidence of coke 0 formula because someone claims they stole their recipe
agencies can conduct a surprise _________ of an enterprise and _______ any evidence of wrongdoing
when an industry is _________ ___________ courts will assume companies know they are subject to periodic, unannounced inspections, agencies can con duty a search without a warrant and seize evidence of violations EX: mining industry
to hold a formal hearing about an issue and then decide it, generally begins with a hearing before an administrative law judge and may involve an appeal to the full agency or ultimately to federal court, NEVER use a jury
administrative law judge
an employee of the agency but is expected to be impartial in rulings, all parties are represented by counsel, the rules of evidence are informal and they may receive any testimony or documents that will help resolve the dispute
1) statutory enabling legislation and APA 2) political control of Congress and the president 3) judicial review 4) informational control created by FOIA and Privacy Act
the 4 most important limitations on the power of federal agencies are what?
enabling legislation of an agency provides limits, (may require the agency use formal rule making) imposes additional controls by requiring basic fairness in areas not regulated by the enabling legislation, APA
the president's influence is greatest with executive agencies because he directly controls funding, congress has additional control because it must approve presidential nominees
an individual or corporation directly harmed by an administrative rule, investigation, or adjudication may general have that action reviewed in federal court, the party MUST go through every appeal process BEFORE this occurs
Freedom of Information Act
congress passed in 1966 designed to give all of us, citizens, businesses, and organizations alike, access to the information that federal agencies are using, idea is to AVIOD government secrecy, almost every state has own version of this act
knowledge will forever govern ignorance
quote by James Madison that keeps us from doing stupid stuff like segregation, we need to inform ourselves if we want to be a part of the political process, we need to know what our government is up to
ANY citizen or executive make make a _______ request, 2 types of data 1) how agency operates, how it spends its money, what statistics and other info it has collected on given subject 2) all citizens are entitled to any records the government has about them
this 1974 statute prohibits federal agencies from giving information about an individual to other agencies or organization without WRITTEN CONSENT
John F Kennedy
Which of the following presidents was most influential in the passing of the Civil Rights Act?
how agency operates, how agency spends money, files an agency collected on the specific citizen
Under FOIA, any citizen may demand information about what?
If information requested under FOIA is not exempt, an agency has ____ days to comply with the request