Lecture Notes - Intro to Course and the Law

Lecture Notes - Intro to Course and the Law - Intro to the...

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Unformatted text preview: Intro to the Law and Intro to the Law and Case Study Methodology Questions of the Day Questions of the Day 1. The Law: Why? (what purposes and functions are served) What? (different “types” of law and regulation) Where? (how to find it) 1. What is Case Study methodology? Some Terms and Concepts Some Terms and Concepts You Should Know: Constitution Branches of Government and Role in Creating Laws Types of Courts Statutes ­ Legislative Regulations ­ Executive Case Law ­ Judicial Case Travel Holding Dissent Precedent Civil vs Criminal vs Procedural types of law Judicial Review Stare Decisis Trial Court Appellate Court Supreme Court State Courts Federal Courts Setting the Table Setting the Table The scope and reach of law and regulation over financial institutions is extremely broad and pervasive – Purpose of this class is to provide an overview There are many kinds of laws and regulation That cover many different kinds of financial institutions Promulgated by many kinds of regulatory and law making bodies and agencies, federal and state The Law: Why? The Law: Why? Law and regulation is generally created for three main reasons: Predictability (Analogy to game rules ­ examples: Chess. Bank Charter (governs the way banks may operate; rules of outcome) Protection (example: Regs B and Z protects consumers) Promoting Policy – i.e. “Leveling the playing field”, encouraging home ownership, tax incentives The Law: What? The Law: What? Various forms of “law” (distinguish between law and “a law”) (distinguish between regulation and “a regulation”) Constitution (the people) – Ultimate law of the land Role of the 3 Branches of Government Distinction between state and federal laws Statutory Law (the legislature) Rules, Regulations and Administrative promulgations (the executive branch) Case law (the courts) Constitutional Issues Constitutional Issues Relatively few Constitutional Issues will be discussed relative to Financial Institutions Most significant will be in the area of “pre­ emption” – where the ability of a state to regulate is “pre­empted” by the federal government – and privacy issues Legislative Branch ­ Statutes Legislative Branch ­ Statutes We will discuss a number of Legislative enactments during this semester – examples are: Bank Holding Company Act Federal Reserve Act The McFadden Act Riegle­Neal Interstate Branching Act FIRREA Sarbanes­Oxley Securities Exchange Act of 1933 Gramm­Leach­Bliley Act Overview of Executive Branch Agencies Overview of Executive Branch Agencies who create Regulations Federal Agencies State Agencies ­ R.I. Banking ­ FDIC OCC OTS Federal Reserve NCUAA Securities SEC FTC Insurance No primary regulator Banking Department of Business Regulation Securities Department of Business Regulation Insurance Department of Business Regulation Judicial Branch ­ Courts Judicial Branch ­ Courts State and Federal Courts Jurisdiction over applicable state and federal laws “higher” versus “lower” courts: district, circuit and supreme federal courts; district, superior and supreme Rhode Island state courts relationship between federal and state courts Trial and Appellate Courts review of lower court decisions and stare decisis The Courts The Courts Findings of “fact” and decisions of “law” Discuss role of the jury and the judgein rendering decisions Understand importance of applying the “facts” to the “law” Stare Decisis Stare Decisis The doctrine of Stare Decisis has two components: Rule: a decision made by a higher court is binding precedent (also known as mandatory authority) which a lower court cannot overturn (except that federal courts are not bound by state court decisions.) Principal: a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. Advisory in nature, courts can and do occasionally ignore this principal. Judicial Review Judicial Review The Courts ability to review a statute (or executive branch regulation) and rule that it violates the Constitution or some “higher” law Established in principal by Marbury v. Madison Using the Case Study Method Using the Case Study Method How to read a judicial decision: “Travel” and setting (including decision below) Facts (established by evidence – critical to decision) Law (what is the applicable law?) Questions Presented Reasoning (which arguments presented are persuasive?) Holding (decision – the whole enchilada) Dissent Dicta (other stuff the court wants to say about the law) Case Study: Marbury v. Madison Case Study: Marbury v. Madison History and Facts of Case Jefferson wins over President Adams and Federalists (1800) Passage by Adams and lame duck legislature of Judiciary Act of 1801: creates 58 new judges and authorizes S/Ct to issue writs John Marshall – as Sec of State – affixes federal seal on last day of Adams administration, but doesn’t deliver new commissions Marshall becomes Chief Justice of S/Ct (considered a demotion) and Madison takes over as Sec of State Jefferson orders Madison not to deliver commissions Marbury (one of the new judges) sues directly in the S/Ct (Marshall) asking S/Ct to order the delivery of the commissions Case Study: Marbury v. Madison Case Study: Marbury v. Madison Dilemma for Marshall: While he wants to rule for Marbury (in favor of fellow Federalists), he recognizes he will be powerless to force the new Jefferson administration to deliver the commissions, and will further damage the credibility and power of his own fledgling S/Ct if he issues a writ of mandamus as authorized by the Judiciary Act that cannot be enforced. Case Study: Marbury v. Madison Case Study: Marbury v. Madison What is the applicable law? Constitution Judiciary Act of 1801 What are the questions of Law? What are the “holdings” Case Study: Marbury v. Madison Case Study: Marbury v. Madison Summary: Marshall rules that the part of the Judiciary Act that authorizes writs of mandamus violates the Constitution because it expands the jurisdiction of the Court beyond what the Constitution contemplates. But, by stripping his own court of that power and dismissing the case before the S/Ct, Marshall establishes the power of the Court to rule acts of Congress unconstitutional. Significance of case: Establishment of the principal of judicial review. Where to Find Laws & Regulations Summary Summary Constitution (by the people) Statutes (legislative) U.S. (Rhode Island) (Other States) Case law (judicial) US Code State General Laws (RI) (Other States) US Courts Regulations (agencies of the executive) U.S. Code of Federal Regulations Summary Summary Other ways to “Slice” the Law State/Federal Civil/Criminal statutes Procedural (including due process) laws (rules) Crimes are defined by statute only (legislative) Requirement of “mens rea” – intent State is the “moving party” – (like plaintiff in civil) Specific and clear­cut “elements” of the crime Compared to substantive law Bill of Rights, Administrative Procedures Act Slicing and Dicing the Law Federal Law State Law Think of Each Cube (of law) as comprised of: • A Constitution • A combination of Legislative (statutory), Executive (regulatory) and Judicial (case) law • ½ Civil and ½ Criminal • A combination of Substantive and Procedural law • Various “subject matter” areas of law The Law: Where? The Law: Where? Discussion of Resources (links in Blackboard): Library (and Resource folder of Blackboard) Search tools for Law: LexisNexis, LLI, FindLaw Regulatory Information: Web sites of regulators (OCC, OTS, FDIC, NCUA, SEC, etc) ...
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This note was uploaded on 02/23/2010 for the course LGLS ? taught by Professor ? during the Spring '10 term at Bryant.

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