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Columbia Business Law Review

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					ADMINISTRATIVE
LAW AND
GOVERNMENT
REGULATION
Administrative Agencies
• Create/Enforce Majority Of Business Laws
• Agencies Provide:
  •   Specificity
  •   Expertise
  •   Protection
  •   Regulation
  •   Services
Administrative Agencies
• No provision for them in the
  Constitution
• Can perform the functions
  of the three branches of
  government.
Agency Functions
• Rulemaking/Guidelines = Quasi-Legislative Power
• Adjudicating = Quasi-Judicial, Fact-Finding &
  Applying Law
   • Cease & Desist
   • Consent
• Advising
• Investigating
    Administrative
    Agencies- Examples
•   Federal Trade Commission           •   Consumer Product Safety Commission
•   National Labor Relations Board     •   Federal Communications Commission
•   Equal Employment Opportunity       •   Federal Energy Regulatory Commission
    Commission                         •   Federal Reserve Board
•   Securities & Exchange Commission   •   Food & Drug Administration
•   Environmental Protection Agency    •   Nuclear Regulatory Commission
•   Federal Aviation Administration    •   Occupational Safety & Health
                                           Administration
HOW DO THE THREE BRANCHES OF
GOVERNEMNT CONTROL WHAT AGENCIES
DO?
• Legislature?

• Executive?

• Judicial?
Quasi-Judicial Procedures
                  Answer

Agency                               Respondent

                Complaint

Evidence                             Evidence

             Admin. Law Judge
           Evidence- Admissibility
                   Motions
               Initial Decision
30 Days                                Appeal
               Final Order
 Judicial Review Of Adjudications

• Agency Authority Limited
   • Delegated From Legislature
   • Develop Rules Of Procedure
• Courts Lack Authority To Substitute For Agency
• Doctrines
   • Exhaustion Of Remedies
   • Primary Jurisdiction
   Review Of
   Factual Determinations
• Court
  • Presumes Findings Of Fact Correct
  • Analyzes Agency Proceedings

• Court Does Not
  • Reweigh Evidence
  • Make Independent Determination
  • Substitute Its View For Agency’s
Federal Laws that Limit Actions
of Federal Agencies
• Due Process Clause
• Administrative Procedures Act
  • Federal Register
• Freedom of Information Act
• Privacy Act
APPEALING A SOCIAL SECURITY DENIAL

        Social Security Claim is denied.
                      ↓
        Request RECONSIDERATION
                      ↓
              Hearing before ALJ
                      ↓

       Review by APPEALS COUNCIL
                  IN SSA
                      ↓
         FEDERAL COURT review
Hearing Procedure
•   Who makes the decision?
•   What are the parties called?
•   What is the burden of proof?
•   Can the parties bring representation?
•   Is the decision appealable? If so, to whom?
Freedom of information Act
(FOIA)
• The FOI Act applies to every “agency,” “department,” “regulatory
  commission,” “government controlled corporation,” and “other
  establishment” in the executive branch of the federal government.

• This includes Cabinet offices, such as the departments of Defense,
  State, Treasury, Interior, Justice (including the Federal Bureau of
  Investigation, the Immigration and Naturalization Service and the
  Bureau of Prisons); independent regulatory agencies and commissions,
  such as the Federal Trade Commission, Federal Communications
  Commission and the Consumer Product Safety Commission;
  “government controlled corporations,” such as the Postal Service and
  Amtrak; and presidential commissions.

• The FOI Act also applies to the Executive Office of the President and
  the Office of Management and Budget, but not to the President or his
  immediate staff.
Freedom of information Act
(FOIA)
• The Act does not apply to Congress, the federal
  courts, private corporations or federally funded
  state agencies.
• Documents generated by these groups and filed
  with executive branch agencies of the federal
  government become subject to disclosure under
  the Act, just as if they were documents created by
  the agencies.
• Congressional agencies such as the Library of
  Congress and the General Accounting Office
  follow their own records disclosure rules and
  procedures patterned after the FOI Act.
Freedom of information Act
(FOIA)
• The FOI Act is very broad.
• It covers all “records” in the possession or control
  of a federal agency.
• The term “records” is defined expansively to
  include all types of documentary information,
  such as papers, reports, letters, films, computer
  tapes, photographs and sound recordings.
• Physical objects which cannot be reproduced.
FOIA Exemptions
•   National Security
•   Internal Agency Rules
•   Statutory Exemption
•   Trade Secrets
•   Internal Agency Memoranda
•   Personal Privacy
•   Law Enforcement Records
•   Bank Reports
•   Oil and Gas Well Data
STATE LAWS
• All states and the District of Columbia have their
  own open records laws.
• The laws can vary, but for the most part they
  follow the format of FOIA.
• In Georgia, citizens may only obtain relief for
  violations by filing a court action. (So there is
  limited enforcement.)
• Open Records Guide: http://www.rcfp.org/ogg/
Agency Rule-Making
• Example of tax laws
• Agency is the Internal Revenue Service
• The statutes, The Internal Revenue Code, is
  passed by Congress.
• The agency issues regulations. (Treasury
  Regulations.)
   • Have the force & effect of law
   • Written by the agency, approved by the Treasury Dept,
     and are covered by the APA and published in the
     Federal Register.
Judicial Review of Agency Rule-
Making
• If there is a conflict between a regulation &
  a statute, the statute prevails
• A regulation with be struck down
  • If it is unconstitutional
  • The agency is exceeding its authority
  • It conflicts with a statute
Administrative Law Resources
• http://www.loc.gov/law/help/administrative.html
• http://topics.law.cornell.edu/wex/administrative_law
• http://www.megalaw.com/top/administrative.php

				
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