Types of Law
We are looking at the types of law from the
perspective of how they are created, where they
come from.
OBE-118, Section 10
Fall 2004
John McKinsey
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
• 1964 Civil Rights Act
• Griggs v. Duke Power
When it is not related to
job performance it is
illegal
• Wards Cove Packing
When it does not
significantly serve a
legitimate business goal
• 1992 Civil Rights Act
When is a company
practice that has a
discriminatory effect
illegal employment
discrimination?
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
Third
Parties
Person
or
Business
Courts
Agencies
(other
businesses,
individuals,
etc)
Administrative Law (Regulation)
• Actually the most relevant topic we have hit yet!
• Admin law is agency law
• Agencies are incredibly powerful and can do great or
terrible things to individuals and businesses
Administrative Agencies
•
•
•
•
Sub-branches of government
Typically created by an enabling statute
Federal, state and local branches
Main classification task:
Executive Departments versus Independent
Administrative Agencies
Types of Administrative
Agencies
Executive Departments
Part 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
• Agencies somewhat independent of all three branches of
government
• Still part of executive branch of government
• Not directly controlled by executive or legislative branches
• Usually run by a board or commission
• Board members or commissioners serve for a fixed term
Enabling Statute
Administrative Agency
Rules
Regulations
Agency Staff execute these
products of rulemaking
Police power of state
Orders
Hearings
Individuals and the Public are
affected by agency action
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.