MGMT 330: January 11, 2010

Briefing a Case

Facts

Events which gave rise to the conflict in question.

Issue

The question the court has to answer (one statement).

Law

Given in the case.

Analysis

Apply the law to the facts.

Conclusion

Who won the case.

 

MGMT 330: January 13, 2010

Introduction to Law

All areas of business have laws you need to know.

Functional Areas of Law

Management (To run the business)

Corporation (O.P.M. - Other Peoples’ Money), Corporate Law

Contract Law

Securities Law

Bankruptcy Laws

Supply Chain Management (Production and Transportation)

Contract Law

Torte Law (Consumer Protection)

Environmental Law

Marketing (Price, Product, Promotion, Placement)

Contract Law

Competition Law

Federal Trade Commission

Consumer Protection (Warranties, liabilities)

Research and Development (Improvement of the product)

Contract Law

Intellectual Property Law

Patent Law

Derivative Rights

Environmental Law

Finance and Accounting (Financing finds the money, Accounting counts the money.)

Contract Law

Banking Laws (Borrowing, loans)

Credit Laws

Corporate Law

Sarbanes Oxley Act

Human Resources (Output - Employment - Income - Spending - Output)

Contract Law

Labor Law

Wages Law

Workplace Safety Law

Privacy Law

Taxation Law

Discrimination Law

Health Benefits Law

Retirement Law

Union Law

 

MGMT 330: January 18, 2010

Definition of Law

Components of Law:

Law has a cultural component to it. It is a reflection of culture; as culture changes, law changes. It all depends on how one views culture.

Law has a behavioral component used to control conduct depending upon relationships.

Law is enforced.

Court system enforces the law.

Police does investigation, retention, and representation of government only.

Law is accepted by the public.

Law goes through codification:

In an indirect democracy:

A law starts off as an idea.

You then get someone in Congress to sponsor the idea.

The idea then becomes a bill which goes through the House and the Senate.

Each makes their own version of the bill which is then merged and sent to the President.

This bill then becomes a statute which is then assigned to the right area to become a code.

In a direct democracy:

Citizens get an idea and get others to sign a petition.

With enough signatures, it gets voted upon where, if it wins, it becomes an initiative.

Referendums are made to try and stop a law from taking effect.

A recall brings the bad officials out of office.

Law

Domestic vs. International

There is no such thing as international law due to the fact that there is no one-world government.

There is no codification, thereby causing the fact that one cannot interfere or enforce one’s law in another country.

There is no enforcement - only the sovereign nation can impose enforcement on their own subjects.

Ethics and Morality

Ethics and morality are two distinct things which may overlap one another.

Ethics undergoes social transmission while law goes through the codification process.

No one enforces ethics unlike law.

Ethics is inconsistent while law is.

Ethics has no punishment system.

Ethics does not work in our society.

The Common Law Legal System

The common law legal system was inherited from the British Isles.

Court decisions play a prominent role in the application to our legal system

This came about because English is a very ambiguous language.

The courts are used to clarify the ambiguity caused by the amalgamation of the original languages which makes up English.

The system was designed to accommodate diversity and to let local customs prevail.

Most cases start at the local level.

Court decisions preceded the creation of laws and statutes

Magnopten Rule - Insanity plea came from a court decision.

Court decisions could be said to be a foundation of law.

Courts rely on the law - once a court makes an interpretation of the law, subsequent courts must follow that precedent.

Steri Decisis - Precedent Following

Local decisions can have national application.

The appellate process (starts local, goes county, goes states appeals, go federal court, go supreme court). Local to national effect.

Critical Thinking and Legal Reasoning

Critical Thinking

Select your topic

Gather the information

Information relevancy

Authentication

Accuracy

Organization

Presented in a professional manner

Legal Reasoning

Deductive (General to Specific)

Inductive (Specific to General)

Linear (Interconnection of relevant facts to reach a conclusion.)

Reasoning by Analogy (Find a related law and apply to the case at hand.)

Traditional (Basic argument consisting of making a motion then proceeding into an introduction, law, rationale, case application, social impact, and finally personal opinion.)

Classification of Intent

Specific Intent Crime

Purposeful knowing state of mind to harm another. (Planning/Pre-meditation needed.)

General Intent Crime

Reckless endangerment. Engaging in conscious indifference or the act of knowing yet being indifferent of harming others and harm results.

Strict Liability Crime

Need not prove intent because they are already liable.

 

Criminal vs. Civil

Regulatory laws result in fines but not in jail time.

Committing a criminal act has a corresponding civil torte you can be sued for.

Criminal cases require intent.

Civil cases use a “no intent” requirement.

The right to counsel is for criminal, not civil cases

Civil cases result in monetary compensation only, whereas criminal cases results in a variety of other methods for compensation.

Public vs. Private

Government applies to public law; criminal law is a form of public law.

Criminal Procedure

Entitlement Law

Benefits given from the Government to the people.

Administrative Law

Regulates how agencies handle their power.

Regulatory Law

Laws coming out of federal bureaucracy

Adversarial Litigation Process

How one would go about in suing a business. The laws whereby a person vindicates their rights.

Substantiative Laws

Laws which define your rights and various types of relationships (civil, social, business, family, etc.)

Procedural Laws

The process one undergoes to prove that one’s rights have been violated.

The evidence presented must: relate to the case at hand, be reliable, not be tampered with, and be authenticated.

Testimony must be presented and must be the truth. A child’s testimony is  a prime example as it is enough to convict a man as they have not learned the purpose or gains in lying.

Administrative Laws

Laws regulating how bureaucracy increases power.

A remedy is entitled once the plaintiff proves their rights have been violated.

In a civil case, monetary compensation is enough, however, in terms of equity, monetary compensation is not enough.

 

MGMT 330: January 20, 2010

Alternative Dispute Resolutions (A.D.R.)

This is a step by step process the court undergoes to resolve civil disputes in a way so as to be able to circumvent the standard procedure.

The Standard Civil Procedure

The plaintiff first files a complaint or a written notification that they have been wronged. The complaint must also define the parties of the defendant and the plaintiff.

Court jurisdiction is then established:

Subject Matter Jurisdiction

Appellate Jurisdiction

Special Jurisdiction

In Personem Jurisdiction

The pleas are then determined:

Active vs. Passive Component

A passive component shows there was no intent to target a specific individual.

An active component requires the dimension of actively contracting an individual.

Governing Law

The determination of the appropriate law that gave one the rights in that relationship - whether it be through contracts, constitutions, etc.

Alleged Facts

The statement explaining how the defendant violated the plaintiff’s rights.

Remedy

The remedy is then outlined, served to the defendant, and signed.

When served a complaint, one responds and denies, or sometimes files a counter-sue.

The next step of the process is to enter into the Discovery or exchange of information between the two parties.

The pre-trial motions are then made:

These consist of written motions to dispose of the case without going to trial.

A common way of disposing the case is through a summary judgment motion.

Sometimes, a motion to dismiss is made for cases such as the court may or may not having jurisdiction, etc.

A mandatory settlement conference is then held.

Here, the judge and lawyers meet to get to some sort of compromise to avoid a trial.

The judge arbitrates the settlement.

Most civil cases (and only civil cases) end here.

A pre-trial conference follows.

Should the case not be settled, a schedule of the events of the trial and when it will take place is made. Again, encouragement of a settlement is made here.

The trial then goes underway.

Expensive and fraught with emotionalism.

With dispute over the rendered decision, post-trial motions are made.

Should their be unease about the conclusion of the trial, they might appeal the judge to re-hear the case.

Criticisms of the Civil Procedure

It is simply too expensive to the tax payers. The use of a court room for a single day costs around $10,000.

The outcome is too swayed by emotionalism.

The process is not concerned about the truth but preserving the integrity of the court system.

The procedure itself takes a substantial amount of time, causing a disadvantage to the poor who may not hold out for the possible length of a case (which could reach 5 years).

Due to the proceedings being public, business public images can be tarnished forever.

This process further leads to inequality.

 

MGMT 330: January 25, 2010

Alternative Dispute Resolutions

This is a very private proceeding where statements made during negotiation are rendered inadmissible in a court of law. This process is made to negotiate without going through court. As an informal system created to not only be quick and inexpensive (taking only about 6 months to undergo), it leads to some form of equality AND seeks to find the truth of the matter.

Negotiation

This is the exchange of information between two contesting parties without going through trial.

By law, they have a year to seek to solve a case in good faith by exchanging and disclosing all relevant information.

Mediation

This is where a third party facilitates communication to solve conflict between two contesting parties.

Both parties operate under a commonality of interest.

A mediator comes in to facilitate discussions to enter a contract which, once signed, becomes binding.

One cannot file a complaint in a court without going through mediation.

If one does not mediate in good faith, the court can set sanctions.

Arbitration

More than likely, for business disputes, arbitration is undergone where a third party hears facts and renders an award tied to the economic disputes presented by the claims.

Usually a lay person, the arbitrator is considered to be a professional in their field with no substantial claim to either of the parties of the case.

Each county has an arbitration panel which the two parties select their arbitrator from. Should they choose two different arbitrators, these two choose a third who then acts as the arbitrator for the case.

95% of all contracts will have an arbitration provision.

Federal Arbitration Act (1925)

If a plaintiff files a complaint in a federal court which is tied to an economic dispute, then the court will refer them towards arbitration. Until this process is settled, the plaintiff cannot approach the court.

The Uniform Arbitration Act (1950)

When the Federal Arbitration Act goes widespread.

The U.N. Convention (1957)

On the enforcement of arbitration awards - if one goes through arbitration in one country, it can be enforced in another country should they be part of the U.N. Convention. 55 countries are currently a part of this congregation including the United States, Canada, Mexico, and several countries in Europe.

Arbitration Concepts

Binding vs. Non-Binding

Binding

One must accept the arbitrator’s reward. One cannot refuse it, but they can set it aside if it’s corrupt, etc. H.M.O.’s usually are binding.

Non-Binding

One needs not accept the arbitrator’s reward and it can be taken to court. Most contracts are non-bonding.

Voluntary vs. Involuntary

Voluntary

Arbitration which means that if a dispute arises, the one will go through arbitration should they sign it under contract. One can file de novo.

Involuntary

Arbitration in which one is forced into should a dispute arise and they file a complaint.

Process

Submission

Designed so that one does not need a lawyer, the system makes it fast but fair.

If the arbitration is voluntary, the parties are given a list of possible arbitrators and they choose an arbitrator from those available. Should there be a dispute in the choice, the two chosen arbitrators will select a third who will act in their stead.

If the arbitration is involuntary, the court appoints an arbitrator.

Pre-Hearing

Discovery goes underway and a list of all pertinent information about the case is presented within one month.

Once done, an arbitration brief presenting one’s own side of the case is prepared and sent to both the arbitrator and the opposing party. With this, each side will be able to recognize each other’s faults.

A conference call is then made to compare the briefs and another call is then made to settle it. Again, if voluntary, then this is under contract only. If involuntary, this is under court order.

Should the case still not be settled, the arbitrator then sets up a court appointment.

Hearing

In this hearing, there is no court appointed stenographer; everything in the proceeding is instead taped. Rules of evidence do not apply in this instance.

Arbitrators are set to find the facts, not to judge.

Award

A written decision based on the facts acquired during the process and explains how the arbitrator came to this decision. This occurs within two weeks of the hearing.

If this process was completely voluntary, then the award may not be accepted and the parties can then file a de novo.

If the process was voluntary and binding, the parties must accept the arbitrator’s decision and not be able to file a de novo.

Setting Aside

An arbitrator’s decision can be set aside if:

The arbitrator’s decision goes against public policy.

The arbitrator showed clear prejudice or participates in fraud.

The arbitrator extends past the scope of his or her field of expertise.

There was not adequate time to prepare for the decision.

De Novo

The de novo is an appeal of the arbitrator’s decision to the court.

 

MGMT 330: January 27, 2010

Ethics and Morality

Ethics

A study of how to act within a business. It is tied to an individual decision making process.

Morality

What is good or bad in a social standard. It is tied to a foundation that guides proper decision making in the workplace.

Structural Liberalism

Goes back to the teachings of Adam Smith within the “Wealth of Nations” (1776) which motivates human beings to solve their economic problems.

States that “society is motivated by their own self interests.”

Advocates for a limited role of government.

States that money as a medium of exchange, a system of weights and measures, a way to attach and store value makes economy.

Declares that the government should pay for national defense, the administration of justice, transportation, etc.

Thomas Jefferson is the Father of Public Education.

Structural Liberalism is a philosophy justifying the capitalist system.

In the capitalist system:

The individual is the most important person.

The individual has private property, using it to maximize their profit in the world where the strong survive and the weak perish.

The individual is rational, knowing how to use their property to full maximization.

The individual competes with others for an even better outcome in the market place. Price guides their behavior.

This is the modern foundation of our society.

Taxes:

Are taken from private profits for social spending.

Are used to finance national defense, transportation, administration of justice, and to support those who cannot compete (the young, the old, the disabled)

Elements: individualism, self interest, private property, hedonism through the marketplace, governed by competition, exchange, the monetary system, and a limited role of government.

Ethical Theories - Used in making business decisions.

Broken into two parts:

Consequentialism

-Concerned about the outcome or impact of your decision on others.

Teleology

More concerned about the end result (from Plato: design your intended results and devise a process to achieve your intended results, and thus is a proper decision.) The ends justify the means.

Utilitarianism

Tied to Jeremy Betham, John Stewart Mills and Fredercik Marshall. Here, one makes decisions to achieve the maximum gain. You become the rational actor. You make a benefit/cost analysis to make the proper decision. Limited by profit maximization.

Egoism

In making decisions, do you feel comfortable after the fact? This ties to psychology which decides which is the proper decision.

Judeo-Christian Concept

You make decisions to make you better served in the afterlife.

Justice Theory

How do you use your power?

Distributive Justice

You evaluate relationships with others in the allocation of rewards and sanctions.

Procedural Justice

Talks about the process of making decisions - the transparency or openness of making the decision.

Interactive Justice

Talks about communication, the dissemination of information. Trustworthiness, reliability, accuracy.

Non-Consequentialism

-Not concerned about the outcome of your decision.

Virtuism

Talks about character and the obligation of society to teach others how to make the right decision for society.

Relativism

The individual is not concerned about society, but their own peer group.

Deontological Concept

Comes from Emanuel Kant - the categorical imperative, one has an obligation to make decisions to benefit the general good. Make a decision for the most good for the most people.

Evolution of Ethics and Morality in Business

Lochner vs. New York: The courts reaffirmed that the individual has a freedom to contract. The state should not interfere.

The Stages of Evolution:

Stage One:

Structural Liberalism (minimal government, profit maximization). The belief that the market will correct itself remained predominant until the Great Depression.

Stage Two:

Market intervention on a limited basis to fix market imperfections. When the market imperfections will not solve the market failure, the government must come in to fix the market and stabilize the economy on a temporary basis.

Stage Three:

In the 1960’s, fair market participation was a ruse. Civil rights laws rose to enable others to go past discrimination and garner opportunity.

Stage Four:

In 1980, Reagan came about to initiate the deregulation of business. Due to the Nixon political problems, distrust was rampant. Thus, academia came about to initiate the teaching of ethical and moral standards.

Stage Five:

To correct that the academics only turned to the Humanities to teach ethics rather than the law, we are now in a present legal obligation to teach business and ethics.

The Criticisms on how Ethics are Being Taught

Impractical

Too many to be able to choose which one to apply.

Ethnocentric

Still structured by profit maximization. Tends to ignore other theories which go against structural liberalism.

Outmoded

They’re old; how can they be applied to the present and future?

Directionless

They do not give any direction as any of them can be used to justify a decision. They provide no constraint.

The Sources of Ethical Behavior in the Workplace

The basic premise of a corporate structure is ‘OPM’ or other peoples’ money. Corporations are funded by a security transaction. A security transaction is defined by C.E.E.:

C.E.E. is a number of people invested in a common enterprise for an expectation of profit through the efforts of others.

Legal Obligation

The law defines how you conduct yourself in the workplace.

Their liberties are defined by the US Constitution.

The Dimensions of Privacy

Communicative Privacy

People have the right to communicate with one another without interference from the employer.

The Communications Act states that if the employee is using the employer’s facilities, they forfeit their communicative privacy as long as the employer notifies the employee.

The USA Patriot Act enables the government to intercept communications for the purposes of national security.

Informational Privacy

An individual has a right to keep their information private.

The Health Insurance Portability Protection Act (H.I.P.P.A.)

Non-essential personnel in a health insurance company do not have access to your health records.

Bodily Privacy

An individual has a right to the privacy of their own physical body.

Territorial Privacy

An individual has a right to the privacy of their own area.

 

MGMT 330: February 1, 2010

1st Amendment Individual Liberties

Speech

-There must be proven necessity to be able to regulate speech.

Protective Speech

Political speech. Unless it leads to harmful results, one cannot prohibit speech.

Semi-Protective Speech

Commercial speech is used to address needs.

Non-Protective Speech

Obscene, criminal (solicitation, conspiracy, extortion, threat, defamation) speech.

Religion

-An immutable characteristic. You cannot discriminate against a person for their religious beliefs. Some form of accommodation must be made for the various religious beliefs.

Press

-Patents, trademarks, communications.

Association

-The right to associate with one another in the workplace.

Discrimination

-By law, a person who is born with an immutable characteristic cannot be treated differently.

Protectable Interests

Hiring

Promotions

Wages

Conditions of Employment

Privileges of Employment

Discharge

Characteristics

Race

Religion

Color (Intra-Racial Discrimination)

National Origin

Age

Disability

Gender

Gender+ (Pregnancy, Obesity)

Affinity (Sexual Orientation)

Fraud

-A form of a theft crime since businesses are reliant on this information. Taking away the veracity of the information is theft.

-In order for fraud to occur, certain elements must be met:

Misrepresentation of Fact

-There must be a false statement of fact.

Scienter

-Knowledge that the information was false.

Intent to Induce Reliance

-Intent to induce reliance on the false, misleading information.

Justifiable Reliance

-The person is justified in relying upon this information resulting in economic losses.

Loss

The economic loss caused by this misinformation.

Fiduciary Duty

Due Diligence

Must use due diligence in making decisions. You must use your expertise, experience and education in making a decision.

Obedience in terms of the Law; Professional and Organizational

Obey the laws. Your decisions must comply with the law.

Cannot violate your professional obligation

Loyalty

Avoid conflict of interest with the organization.

You must not compete with the business of your company.

You must not earn secret profits from the company.

Inform

Whatever you know must be transmitted to your superiors.

Account

You must keep an account of expenditure

Confidentiality

Privacy in information distributed or disclosed to one another.

Due Care

In making decisions, you must not use arbitrary criteria. Use reliable facts. You have a duty to investigate before you make a decision. You have an obligation to gather information to make sure its reliable, relevant and trustworthy.

The Business-Judgement Rule:

You will not be liable in simple losses to the company if you use due care in making decisions.

Disclosure

How much information must be disclosed to a consumer in a financial transaction? The simplification of vocabulary in a complex transaction. Making sure the person understands the nature of the transaction.

Informed Decision

You must make an informed decision.

Loyalty

You must not compete

Professional Obligation

The licensing for professional functioning.

List of professions practiced within the state.

Form agency to regulate the practice of the profession in that state.

Write rules and regulations to manage said practice in the state.

Tests ensue to make sure the person is qualified to practice that profession and understand the rules.

Violation of the rules invokes the power to revoke the license should they prove unable to comply with standards.

Organizational Obligation

A manual is usually given out to define the organizational rules.

Mostly deals with the relationship between their customers and their suppliers.

Contents of the Organizational Obligation Rules

Disclosure Requirements

Customer Relations

Supplier Relations

Workplace Safety

Accounting Responsibilities

Financial Reporting

Internal Auditing System

Administrative Law

Federal Bureaucracy, how it evolved, powers, personnel, etc. 16 departments and their sub-agencies. Emphasis on limitations and the powers of the federal bureaucracy. Constitutional Limitations.

Laws that regulate how the federal bureaucracy manages their powers

Structure/what is a bureaucracy (a human machine that executes governmental policy) How they implement their rules.

Regulatory agencies (EPA, FTC, DEA, FRB)

Civil servants

Powers of the agency (PAASIR)

-Prosecute

-Adjudicate

-Advise

-Supervise

-Investigate

-Rule Making

The due process clause of the 5th and 14th amendments. Procedural clause. Arbitrary. Capricious. Unreasonable classification schemes.

Due Process = ACU

Substantive/Procedural due process.

Statutory limitations. The administrative procedures act of 1946. Small business flexibility act. Regulatory flexibility act. Freedom of information act. Government in sunshine act.

Application to the EPA

Bureaucracy

Limitation

Constitutional Limitations

Statutory Limitations

The Administrative Procedures Act of 1946.

Small Business Flexibility Act

Regulatory Flexibility Act

Freedom of Information Act

Government in Sunshine Act

Judicial Review Limitations

In terms of standing, standard of review.

Congressional Limitations

Executive Limitations

 

MGMT 330: February 3, 2010

Administrative Law

Definition

-Laws that regulate how governmental actors exercise their powers.

As they are planning on making a rule, they must let the people to comment (known as the comment period). The final rule then takes place. The formal rule making process the administrative procedures act of 1946

Bureaucracy (Federal)

Definition

-Considered as the execution arm of government.

Structure

Department

-14 Departments

State (international matters, embassies, humanitarian things)

Treasury

Interior (management of the land)

Justice (execution of the law)

Agriculture (food inspectors)

Commerce (trademarks, census, minority affairs)

Labor (workplace safety, management relations)

Defense (army, navy, marines, air force)

Housing and Urban Development (mortgages, urban services)

Education

Veterans Affairs

Energy

Transportation (automobile safety)

Homeland Security

Sub-Agencies of Executive Departments

-A refinement of the executive department to work on specific areas. Know how these sub-agencies function and how they work on others.

Justice

FBI, DEA, Us Marshals service

Interior

Bureau of land management, Bureau of Indian affairs

Treasury

Mint, banking system

Commerce

Minority affairs

Homeland Security

Coast guard, immigrations office, border patrol

Independent Regulatory Agencies

-Agencies created to regulate business practices. Items such as business conduct. They make rules in the public interest by increasing the cost of doing business. They are highly controversial. To comply with these rules, it costs a lot of money. Small businesses cannot afford to comply

There are at least 84 regulatory agencies, and more are being proposed such as:

Public Accounting Oversight Board

National Accounting Licensing Program

Consumer Finance Protection Agency

First one created in 1888 - Interstate Commerce Commission: Railroads charges high rates which led farmers to bankruptcy, so the government created

In 1908, Theodore Roosevelt read ‘The Jungle’ a pro-union book, which had a part which observed an employee’s arm getting cut off and was made into sausages. The Federal Food and Drug Administration arose from this as Theodore Roosevelt was eating a sausage at the time.

The Federal Trade Commission

The Federal Reserve Board

The Securities and Exchange Commission which came from the collapse

1936 - National Labors Relation Board

1938 - Wage Commission

1960 - Equal Employment Opportunities Commission

Consumer Products Safety Commission

National Traffic Highway Safety Administration

Civil Aeronautic Board

Atomic Regulatory Commission

1970 - Environmental Protection Agency

Evolution

-First: It started from lessaiz faire capitalism or structural liberalism. The government had a very minor role in the economy. The economy was run by the state government. Little federal intervention.

Article I, Section 9 prohibits direct income on wages and specific businesses.

The first official income tax was during the civil war when Lincoln imposed it to finance the war. When the war ended, ex parte mulligan: income tax was unconstitutional except as a war time measurement (or an emergency situation)

During the civil war, big businesses came about because small businesses cannot meet governmental demand, so they combined and led to super-normal profits.

After the civil war, they stayed big instead of reverting back, and used their dominance to affect politics with monopolies.

First Stage: In 1880, the emergence of federal intervention into the economy to regulate the conduct of business.

1916, the emergence of the Federal Trade Commission to address the issue of anti-competition and monopolies. The Federal Reserve Board to bring back a national banking system. Taxes came about to overturn the anti-tax provision to overturn mulligan by passing the 16th amendment. This states that congress can tax income of any kind.

In the 50’s, the civil rights movement, the state showed they were not accommodating to the minorities.

Third Stage: The 1960’s, social issues such as educations, pregnancy, poverty, environment and health popped up for the government to get involved in.

The Reagan Administration came to de-regulation and supply-side economics in 1980.

Unregulated compensation, fees, practices as long as their conduct didn’t hurt the public.

The Enron Era: More regulation, more governmental intervention into the economy.

Personnel

-Those who work in these departments.

Appointment

-Heads of the departments who serve to pleasure the president. They stay in office during the term of the president except for the independent regulatory agencies. They serve terms for 7 - 14 years. They are appointed from the industry in which they are going to regulate.

Civil Servant

-Rank and file employees. One time, we did the patronage system - to the victor went the spoils. All federal jobs were tied to the elections.

Went from the patronage system to the civil service system - hired for your competence in the job. All jobs are listed in the civil service commission.

Powers

-PAASIR

Power to Prosecute

Agencies cannot bring criminal actions against you, only civil. If your actions border on the criminal, they refer you to the Justice Department.

Power to Adjudicate

A quasi-court system within the agency.

Power to Advise

By law, they have the power to advise. When they advise, they must give you a badge number. Always get this.

Power to Supervise

They write laws to oversee the regulation of your work.

Power to Investigate

Search and seizure, interrogations.

Power to Rule

They can make rules to regulate the practice of your profession.

 

MGMT 330: February 8, 2010

Limitations on Powers

Constitutional Limitations

The US Constitution tells government how to govern. It imposes limitations on government on how to exercise their powers.

Due Process Clause of the 5th and 14th amendment.

5th - Grand jury indictment. G.I. rights. Double jeopardy - cannot be tried twice by the same government for the same offense. Self incrimination. Just compensation. No person can be denied life, liberty or property without due process of law.

14th - Citizenship and its acquirement (birth or naturalization), US citizens get privileges and immunities. No state may deny any person life, liberty or property without due process of law. Equal protection clause.

Applies to any person within the United States are protected by the due process provision.

Due process is a very illusive term. The first time it was introduced was in the Magna Carta when they sought to put constraints upon the king or monarch. As a result, early interpretation was fundamental fairness in the application of governmental powers.

Arbitrary, Capricious and Unreasonable

Lochner vs. New York - Children working in the bakery industry. A fire broke out and children died. They took a picture and put it on the front page of the New York Post. The city council passed the first child labour law in the US banning children working in the baking industry. Interferes with the private rights to contract. Must be logical, not arbitrary or emotional criteria.

In order for a law to be valid, it cannot be based on arbitrary or emotional criteria - it must be a product of a thinking process with informed decisions, research, and discussion. Decisions cannot be made on arbitrary or emotional criteria. There must be evidence.

In the 30’s, Sunday Closing Laws for states to have a right for them to determine a day of rest. Capriciousness - as you pass a law to benefit one group, you may not overburden another group.

In the 60’s, the civil rights occurred.

Due process today government cannot be arbitrary, capricious, or participate in unreasonable classification schemes.

Substantive Due Process

In substantive due process, you challenge the law itself. First, congress passes a law which the President then signs. To challenge an act of government, the following five components must be met:

Intent

Every law written must have a proper intent or rationale (supported by evidence to serve a purpose) to satisfy the arbitrary process of the due process law.

Vague

The law cannot be vague. It must be clear and specific as to how an individual applies that law. They must remove subjectivity of the application of the law.

Overbroad

As you write the law, you infringe upon the rights of others. Much like capriciousness.

Compelling Interest Test

Government must show an absolute necessity or compelling interest and the means must be narrowly tailored so as not to have any viable alternatives.

Rational Basis Test

Government must have a legitimate interest.

Procedural Due Process

The more important the right, the more procedural due process due. At minimum, a 10 step process.

Notice

At minimum, someone is entitled to a notice of the actions held against you.

Discovery

All the evidence to deny you a right must be given to you.

Hearing

Entitled to a proceeding to present your own evidence.

Impartiality

Hearing will be presided over by a judge without a stake in the matter.

Right to Counsel

In most civil cases, you do not have a right to counsel at their expense. However, you must be given counsel for big things like being denied employment or expulsion.

Opportunity to be Heard

At the hearing, you can show your evidence.

Right to Confrontation

Impeach the credibility of the evidence, the witnesses, etc.

Decision Based on Information at the Hearing

Decisions cannot be based on information outside the hearing.

Written Decision

The decision must be in writing, justifying how they reached that decision and how the evidence was weighted. It must be supported by the evidence at the hearing.

Right to Appeal

Should the rendered decision be unfavorable, one has the right to appeal the judge.

Statutory Limitations

APA = Administrative Procedures Act of 1946 (RIP)

Rule-Making (Formal)

Step 1) Notice of a pending rule in the federal register.

Step 2) A comment period for the public to discuss the impact of the rule on the affected industry.

Step 3) Rule adoption must take into consideration the comments made by the public during the hearing process.

Investigation

Tied to the 4th, 5th and 6th amendments. Technically speaking, these are all civil cases but can lead to criminal cases. In terms of search and seizure, they need a search warrant. Interrogation enables information to be sought and found. Subpeona must be sent out for civil implications only. It must be relevant to the agency itself. Agencies were prohibited from transferring documents to other agencies. US Patriot Act counteracts that.

Prosecution

The agency has its own court system n the agency. Civil fines can be imposed through some type of judicial proceeding. These are not true courts - just administrative courts. These are civil proceedings only:

Step 1) Conduct an investigation

Step 2) File a formal complaint through the court and give discovery.

Step 3) Negotiated settlement - many cases end here to avoid publicity.

Step 4) Mini-trial is held if settlement isn’t negotiated. Only held with a judge.

Step 5) A ruling is made which is subject to an appeal.

Freedom of Information Act (FOIA)

Information is not public unless it deals with national security, employment issues, or jeopardizes an individual.

Government in Sunshine Act (GSA)

Information must be transparent.

Regulatory Flexibility Act

Whenever a decision is made, it must take into account the economic impact to the firm.

Small Business Flexibility Act

Whenever an agency makes a rule, small businesses must first agree to it.

Judicial Limitations

Every action by these agencies are subject to judicial review.

Threshold Requirements (SER)

Standing

The person must be affected by the agency ruling. The person must be injured and thus be the only one who can hold the action against the agency.

Exhaust

They must exhaust all rights of appeal within the agency.

Rightness

There must be a case or controversy still going on. It must not be settled.

Standard of Review (EICPAS)

How the court looks at the agency. Courts do not have the expertise, they just apply the law. So they defer to the agencies who are appointed for their expertise.

Exceed

Did they exceed the scope of litigated powers?

Interpretation

Did they properly interpret their power?

Constitutional

Did the law violate constitutional due process standard?

Procedure

Did they follow proper procedure in terms of rule making, investigation or prosecution?

Arbitrary/Capricious Test

Does the law pass the arbitrary/capricious test? Is it logical? Does it overburden another group?

Substantial Evidence Test

Is the decision supported by a sufficient amount of evidence such that the average, reasonable person applying the reasonable skills would reach the same decision?

Congressional Limitations

Executive Limitations

The Environmental Protection Agency

The first major environmental law passed was the national environmental impact act. In 1970, they passed the air and water laws (clean air act and clean water act). The EPA will be tested on Legislation, like the clean air act (stationary vs non-stationary polluters. Clean waters act (discharged water must be treated before being dropped into navigable and non-navigable water systems. Toxic substance control act. Resource conservation recovery act. Endangered species act. Safe water drinking act. Marine mammal protection act.

 

Exam day, bring the answers of your group. Bring your revised and typewritten notes as well! 20 multiple choice questions. 12 identification, answer 6 defining terms. 5 essay questions, answer 3. Bring the green scantron and the blue book, doesn’t matter the size. Pencil for scantron, essay in ink.