Types of Law II

OBE-118, Section 3

Fall 2004

John McKinsey

Today we finish developing a good understanding of the three-dimensional spider web known as

“the law”

Enabling Statute

Administrative Agency

Rules Regulations Orders Hearings

Agency Staff execute these products of rulemaking Individuals and the Public are

affected by agency action Police power of state

Agency Rulemaking• Similar to a legislative process• Administrative Procedure Acts or other statutes

usually specify a process to follow• Proposed Rule must comply with higher law • Notice and response to comments is the main

responsibility we expect for due process purposes• Best advice: when you find out an agency is going

to regulate something you do, get involved early, and be persistent and active

Other Agency Roles/ Functions

• Investigation

• Enforcement

• Adjudication- (hearings)

Administrative Hearings

• Due Process Requirements– Notice and opportunity to be heard– Sometimes to confront witnesses against you

• Usually “evidentiary” in nature but less formal than court system

• Can have an attorney or representative

But law is more complex...

• We have actually gone off on a tangent, fully exploring agencies and what they do.

• Our topic is primarily sources of law.• We have seen that agencies make law in addition

to applying it and enforcing it.• But, back on our original topic, you should

understand that courts interact with agencies much like they do with the legislative process.

Judicial Review of Agency Action

• Scope of a court’s review:– Usually just the application of the law to

the issue at hand

• To get a court to review you must have “standing”:– Injury

Judicial Review

• Criteria for Review (Arbitrary and Capricious) (“Chevron” deference)– Violation of a higher law (constitution, statutes)

– Own process not followed

– Exceeded discretion (deference given to agency)

– Not a “substantial evidence” standard, instead think of it as “is their some evidence that supports the agency’s decision.

Types of Law

Legislatures/ Executive Agencies

Statutes RegulationsPerson or Business

Courts

Dealing with the Law

• Businesses deal with the law in many ways– Lobbying to change or influence statutory law– Dealing with agencies or executive branch

departments to get permits, fight off a fine, etc– Disputes arising out of interactions of a

business with other individuals\ or business entities (torts and contracts)

The next two topics deal with this last type of interaction with law

Types of Law (emphasizing the sources of law and how they apply to

individuals)

Legislatures/ Executive Agencies

Courts

Statutes RegulationsPerson or Business

Types of Law (emphasizing the ways in which business interacts with the law)

Legislatures/ Executive

Agencies

CourtsPerson

or Business

Third Parties

(other businesses, individuals,

etc)

Lawsuit

Lawsuit

Lawsuit

Lobbying

Regulatory Compliance

Overview of this Course

Introduction, Defining Law

Types of Law Forums Where Law is Applied

Torts Contracts

Product Liability

Secured Transactions

Employment Law

Bankruptcy

Property

Business Organizations

Antitrust Law

Some substantive

areas we get to

sample

Next Class

• We will study dispute resolution, both in courts as well as outside of the court system.