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Unformatted text preview: CHAPTER 4 CHAPTER 4 COMMON LAW, STATUTORY LAW, AND ADMINISTRATIVE LAW COMMON LAW COMMON LAW The common law is judge­made law. Stare Decisis – “Let the decision stand” – Precedent – previous decisions on similar facts – Predictability v. Flexibility COMMON LAW COMMON LAW Only the appellate division can make rulings on law. Bystander Cases – Trial court only decides fact and applies law. – You have no duty to assist someone in peril unless you created the danger – Union Pacific Railway Co. v. Cappier (1903) – Exceptions Master­Servant Other special relationships such as therapist­patient Tarasoff v. Regents of the Tarasoff v. Regents of the Univ. of California – p. 75 Facts: Prosenjit Poddar killed Tatiana Tarasoff. Tatiana's parents claimed that two months earlier Poddar had confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the University of California at Berkeley. They sued the university, claiming that Dr. Moore should have warned Tatiana and/or should have arranged for Poddar's confinement. Issue: Did Dr. Moore have a duty to Tatiana Tarasoff? If so, did he breach that duty? Holding: The defendants are potentially liable. Once a therapist does determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. Hardingham v. United Hardingham v. United Counseling Service of Bennington County, Inc. Hardingham was a recovering alcoholic. Defendant United Counseling Service (UCS) gave him a job as an emergency services counselor. Halpin, UCS's executive director, learned that Hardingham was again drinking. Halpin and other UCS employees went to Hardingham's home, where they found him inebriated. They saw him attempt to drink from a bottle apparently filled with windshield wiper fluid. They took the bottle away and took Hardingham to the local emergency room. Hardingham refused to take a blood test and the UCS employees neglected to tell the hospital that he had evidently been drinking wiper fluid. Because Hardingham refused to cooperate with hospital employees, the police took him to a correctional center. Overnight, Hardingham suffered severe distress and the police returned him to the hospital. Tests revealed methyl alcohol in his blood, apparently from the wiper fluid. The substance left Hardingham with permanent injuries, including blindness. He sued UCS and its employees under 12 V.S. A. §519. (See discussion above) Question: Did the defendants' conduct constitute ordinary negligence, meaning they are not liable under §519(b), or gross negligence, meaning they are liable? Hardingham v. United Hardingham v. United Counseling Service of Bennington County, Inc. Answer: The court found that the defendants' omission to tell the hospital about the windshield wiper fluid was not gross negligence. Gross negligence “amounts to a failure to exercise even a slight degree of care” and an “indifference to the duty owed to another.” The court held that no reasonable juror could find that the defendants' conduct was gross negligence, and summary judgment was appropriate for the defendants. The defendants acted reasonably by going to Hardingham's house, taking him to the hospital, and then locking him up to protect himself. Their conduct probably saved his life. If the omission was negligence at all, it was ordinary negligence, and they are not liable for his injuries. Hardingham v. United Hardingham v. United Counseling Service of Bennington County, Inc. The dissent pointed out: The facts here are particularly telling. Defendants obtained emergency medical assistance and accompanied plaintiff to the emergency room, but failed to tell the emergency room physician the most significant fact that was not obvious from plaintiff's condition–that plaintiff had consumed windshield wiper fluid. The result was that plaintiff was diagnosed at the emergency room with “depression and acute intoxication” for which the obvious treatment was “detoxification.” The emergency room doctor's report is significant in this respect: “[a]ttempt was made to obtain blood this evening, but the patient refused this to be done. There being no evidence of acute emergency, I did not force this issue.” There was no evidence of “acute emergency” because defendants failed to tell the doctor what plaintiff had ingested. Because no blood work was done, the hospital did not diagnose a methanol overdose. Without treatment for the ingestion of methanol, plaintiff lost his sight. The dissent concluded that the purpose of the statute had been to force people to respond in an emergency and to do a reasonable job, and that it should have been up to a jury to decide whether these defendants behaved reasonably. Statutory Law Statutory Law Most new law is statutory, that is, it is legislation passed by either a state legislature or the Congress of the United States. Citizens who vote have some control over statutory law. We elect the state congressional representatives and the United States Senators and Representatives. STATUTORY LAW STATUTORY LAW Congress – National Legislature State Legislatures Congressional Process – Bills Two houses (House of Representatives and Senate) – Either can originate a proposed statute, which is called a bill Both houses must vote on and approve a bill Once both houses pass it, send it to president, if he or she signs it, it becomes law If president opposes bill, he or she will veto it, and it will not become law STATUTORY LAW STATUTORY LAW – Discrimination: Congress and the Courts – Committee Work When a bill is proposed, it is usually reffered to the committees that specializes in those fields. This is where most of the heavy lifting is done – Debate A crucial issue that showed interplay between Congress and the Courts Bills are debated on the floor of each house Conference Committee – – – Bills are often changed in each house Senate­House committee works out differences New modified version of the bill sent to each house for another vote – HEALTH CARE BILLS STATUTORY LAW STATUTORY LAW – Statutory Interpretation Court explains precisely what the language means and how it applies to a given case Three primary steps: – Plain Meaning Rule – Legislative history and intent – Public Policy – Voter’s Role Influences legislation and legislatures Conference committee – examines Conference committee – examines difference between house and senate approved ­bill, and then negotiates a compromise If vetoed, it goes it O the both houses pass If nce second House of Congress made any changes, or amendments, to the bill, back to the houses. Here, they If signed, the billConference Committee, made up of members of both Congress, where it the compromise bill, it law. must go to a becomesis mbill. The compromise s ork out compromises went to the President tobetween the two different versions of the ust pass both houses by a 2/3 majority. be then goes back to both houses for a final vote. bill signed. How New Laws Are Made Made House of Representat ives Conference Committee It is assigned to a committee and the process repeats. Judiciary Committee Senate After it passes If it passes there, it goes co the other the bill goes t ommittee, house to the full body of or (House to Senate that house for a vote. Senate to House). Foreign Relations Banking, Education Judiciary Finance, and and Committee Urban Labor AAbill, or proposed law, is introduced ffairsMajor House A in the House ofppropriatio Major Senate n Representatives or the Senate and then assigned to a Aeronautical Committees ArmedCommittees Ways and Armed Agriculture committee for discussion Means voting. and Space and Services Services Sciences Griggs v. Duke Power Co. – Griggs v. Duke Power Co. p. 63 Facts: Duke Power used a high school completion requirement and an intelligence test in hiring and promotion. The result was that fewer minority applicants qualified for jobs at Duke Power. Griggs sued under Title VII. Issue: Does Title VII proscribe tests that are neutral on their face but perpetuate discrimination? Holding: Title VII does proscribe such tests. The Act proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an employment practice excludes minorities it is prohibited unless it can be shown to relate to job performance. STATUTORY LAW STATUTORY LAW – Congressional Override – The Other Player: Money If President Vetoes a bill, Congress can override the veto if each houses repasses the bill by a 2/3 margin Influence from campaign contributors, etc. must be considered ADMINISTRATIVE LAW ADMINISTRATIVE LAW Background Classification of Agencies – Executive v. Independent – First administrative agency was created to regulate railroads – Flexibility v. unreachable by voters Executive Agencies much more controlled by President (can fire agency head at any time) Classification of Agencies Classification of Agencies Executive Federal Agency: Part of executive branch, under the control of the President; usually support the President’s policies. Examples: Federal Bureau of Investigation (FBI) Internal Revenue Service (IRS) Food and Drug Administration (FDA) Nuclear Regulatory Commission Independent Federal Agency: Not part of executive branch; President does not have the power to fire the head of the agency. National Labor Relations Board Environmental Protection Agency (EPA) Federal Communications Securities and Commission (FCC) Exchange Commission Federal Trade Commission (FTC) ADMINISTRATIVE LAW ADMINISTRATIVE LAW – Enabling Legislation – The Administrative Procedure Act Congress creates a federal agency by passing enabling legislation; an agency may possess and wield only that power delegated by its enabling act A legislative body may delegate to an agency only such power as the legislative body itself possesses under the constitution creating it. Passed in 1946 to bring uniformity and control to many federal agencies. Regulates how federal agencies make rules, conduct investigations, hold meetings and hearings, reach decisions and obtain and release information. ADMINISTRATIVE LAW ADMINISTRATIVE LAW Power of Agencies – Rulemaking Legislative Rules Interpretive Rules – Much like statutes – These rules do not change the law – They are the agency’s interpretation of what the law already requires – Publishes a proposed rule in advance, allows public to comment – Required to hold a hearing before issuing rule – Create a statute first and then go into detail rulemaking Informal Rulemaking Formal Rulemaking Hybrid Rulemaking ADMINISTRATIVE LAW ADMINISTRATIVE LAW – Investigation Some companies cooperate – voluntary compliance is always the first road. Subpoenas – – – – Relevant Not unreasonably burdensome Not privileged Doe v. Maryland Board of Social Workers (2004) – Adjudication Search and seizure Recalls – US Product Safety Commission To adjudicate a case is to hold a hearing about an issue and then decide it Administrative law judge (ALJ) Power of Agencies ­­ Adjudication Procedures for adjudication – A hearing before an administrative law judge. – Parties have counsel, but there is no jury. – Informal; both sides present evidence. – Judge makes ruling on testimony and evidence. If parties are unhappy with results – Loser may appeal to an appellate board. – Appellate board may make a de novo decision, and ignore the administrative law judge’s decision. – Appeals go to a federal court. Doe v. Maryland Board of Doe v. Maryland Board of Social Works – p. 91 Facts: “Mrs. F” was a licensed social worker in Maryland. One of her clients, “John Doe,” was convicted of child abuse and sex offenses involving his minor granddaughter. The Board of Social Work Examiners, an administrative agency, learned that Mrs. F. had likely violated the law by failing to report the abuse. The agency began an investigation, and issued a subpoena duces tecum to Mrs. F., demanding all treatment records for John Doe and his wife Jane Doe, for the year in which the abuse occurred. The Does (“Petitioners”) sued, asking the court to quash the subpoena. They claimed that a social worker­client privilege prohibited disclosure of their records. The intermediate court of appeals declared the subpoena valid. The Does appealed to the state’s highest court. Issue: Was the subpoena valid? Holding: Validity of subpoena affirmed. Doe v. Maryland Board of Doe v. Maryland Board of Social Works – p. 91 A state statute affords social workers and their clients similar protections that have long been applicable to other relationships where privacy issues and the need for open communication are of paramount importance, e.g., marital privilege, attorney—client privilege, psychiatrist/psychologist—patient privilege, clergyman—communicant privilege, etc. We consider the information contained in those treatment records to be both confidential and privileged. Therefore, we must examine the Board's claim that its subpoena power and obligation to oversee the conduct of the licensed social workers of this State provides an exception to petitioners' privilege and confidentiality rights as provided by law. The Board’s interests in obtaining Ms. F’s treatment records are clearly compelling. The legislature established the Board to protect the public by setting and maintaining high professional standards for social work. As the Court of Special Appeals stated: "To deny the Board access to patient files is to deny it the ability to carry out its legislative mandate.” Neither the social worker—client privilege nor any claim concerning petitioners' constitutional right to privacy automatically prevents the Board from subpoenaing petitioners' treatment records. While the Board is required by law to protect the petitioners' treatment records from further disclosure, the Board must be allowed to have access to those treatment records in order to fulfill its statutory mandate to protect the public by conducting a full investigation and, where appropriate, disciplining those licensed social workers who are found to be in violation of the [law]. LIMITS ON AGENCY LIMITS ON AGENCY POWER Statutory Control – The enabling legislation that created the agency places controls on it through requirements and restrictions. – The President has control over agencies through political pressure and through nominations of agency heads. – Congress controls the budgets of agencies. They can eliminate funding for any program or an entire agency. – Congress can amend enabling legislation to place limits. Political Control LIMITS ON AGENCY LIMITS ON AGENCY POWER Judicial Review – Standard on Review – A party injured by an agency decision is entitled to an appeal in a federal court, after all appeal options are exhausted within the agency itself. – The court must consider the facts as stated by the experts in the agency and the law as interpreted by the agency. Court generally defers to agency on fact­finding Courts will often defer to an agency’s interpretation of the law Informational Control and the Public – The Freedom of Information Act (FOIA) ­­ allows any citizen to request information from an agency. – The Privacy Act ­­ prohibits agencies from giving information about an individual to other agencies without consent. There are some exceptions. Fox Television v. FCC Fox Television v. FCC – p. 93 Facts: The FCC declared that the “f­word” and “s—t” were indecent, explicit, and shocking, and the utterance of those words on the airwaves violated the Commission’s decency standards. When the Commission said it had the right to fine stations for broadcasting such speech, the networks protested arguing that such utterances were fleeting and isolated. The networks also claimed that the Commission’s past practice permitted sporadic usage, and that the new policy was therefore arbitrary and capricious. The Commission claimed that it had the right to prohibit even occasional use of those words. The networks appealed. Issue: Did the FCC abuse its discretion by prohibiting even the occasional use of the words? Fox Television v. FCC Fox Television v. FCC – p. 93 Holding: Yes, the order of the FCC is vacated and the case is remanded for further proceedings. Excerpts from Judge Pooler’s Decision: Courts will set aside agency decisions found to be arbitrary, capricious [or] an abuse of discretion. A court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.” First, there is no question that the FCC has changed its policy. Prior to [this ruling], the FCC had consistently taken the view that isolated, non­literal, fleeting expletives did not run afoul of its indecency regime. Agencies are of course free to revise their rules and policies. Such a change, however, must provide a reasoned analysis for departing from prior precedent. The primary reason for the crackdown on fleeting expletives advanced by the FCC is the so­called “first blow” theory described in [a Supreme Court decision called the Pacifica case]. In Pacifica, the Supreme Court justified the FCC's regulation of the broadcast media in part on the basis that indecent material on the airwaves enters into the privacy of the home uninvited and without warning. The Court rejected the argument that the audience could simply tune­out: “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.” Fox Television v. FCC Fox Television v. FCC – p. 93 The “first blow” theory bears no rational connection to the Commission's actual policy regarding fleeting expletives. As the FCC itself stressed, the Commission does not take the position that any occurrence of an expletive is indecent or profane under its rules. For example, the Commission will apparently excuse an expletive when it occurs during a “bona fide news interview.” Similarly, the Commission's warning that a per se exemption for fleeting expletives would “permit broadcasters to air expletives at all hours of the day so long as they did so one at a time,” is equally divorced from reality because the Commission itself recognizes that broadcasters have never barraged the airwaves with expletives even prior to [this case]. Accordingly, we find that the FCC's new policy regarding “fleeting expletives” fails to provide a reasoned analysis justifying its departure from the agency's established practice. We grant the petition for review, vacate the order of the FCC, and remand the case for further proceedings consistent with this opinion. ...
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