Types of Law

OBE-118, Section 10Fall 2004

John McKinsey

We are looking at the types of law from the perspective of how they are created, where they

come from.

Types of Law

• We care as much about where the law came from (who or what created it) as we do what the law is.

• Fundamentally, we can say law comes from three sources:

Legislative process

Court-made law

Agency-made law

Statutory Law• Legislature or Congress: then Executive Approval or Veto

• What limits the authority of a State to make laws?

• What limits the authority of the Federal government to make laws?

Court-Made Law (Common Law)

• Common law is the law made by courts.• Common law began before there were

American courts – with the courts of England. • Common law evolves narrowly, slowly, with

occasional major decisions. • A court decides the specific issue before it and

no more.

Stare Decisis and Precedent• Generally courts follow previous decisions – creates predictability

• Courts will also, however, deviate when circumstances require – provides flexibility

• Sister or courts look upon a different court’s decision with a more critical approach

• A lower court must follow the precedent from courts above it• The same court might even change its mind

But law is more complex….

Courts interact with statutory law (and thus the legislative process) creating a constantly changing, evolving face of law.

The Evolution of Law

When is a company practice that has a discriminatory effect illegal employment discrimination?

• 1964 Civil Rights Act• Griggs v. Duke Power

When it is not related to job performance it is illegal

• Wards Cove PackingWhen it does not significantly serve a legitimate business goal

• 1992 Civil Rights Act

Types of Law

Person or Business

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 ways in which business interacts with the law)

Legislatures/ Executive

Agencies

CourtsPerson

or Business

Third Parties

(other businesses, individuals,

etc)

Administrative Law (Regulation)

• Admin law is agency law

• Actually the most relevant topic we have hit yet!

• Agencies are incredibly powerful and can do great or terrible things to individuals and businesses

Administrative Agencies

• Federal, state and local branches• Typically created by an enabling statute• Sub-branches of government

Executive Departments versus Independent Administrative Agencies

• Main classification task:

Types of Administrative Agencies

Executive DepartmentsPart of the executive branch of the government and thus carry out functions of government

Example:

• Cabinet-level departments of US President

Types of Administrative Agencies

Independent Administrative Agency

• Board members or commissioners serve for a fixed term

• Still part of executive branch of government• Not directly controlled by executive or legislative branches• Usually run by a board or commission

• Agencies somewhat independent of all three branches of government

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 today 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.