Legal/Ethical Issues in Business: Week 3
Legal/Ethical Issues in Business: Week 3 BUS 205
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This 4 page Class Notes was uploaded by Brittany Smith on Sunday September 11, 2016. The Class Notes belongs to BUS 205 at Colorado State University taught by Stephanie Hewitt Bowen in Fall 2016. Since its upload, it has received 42 views. For similar materials see Legal/Ethical Issues Business in Business at Colorado State University.
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Date Created: 09/11/16
Legal and Ethical Issues in Business Chapter 4 How Are Agencies Created #1 Define the Problem #2 Create Agency o Through legislation o Delegation Doctrine Article 1 Section 8 #1 Rulemaking (legislative power) #2 Enforcement (executive power) #3 Adjudication (judicial power) internal hearings #3 Defines Agency Power Agencies are created by Congress through legislation Types of Agencies Executive Agencies o Cabinet and Subagencies Department of Justice, Department of State, etc. o President appoints and removes officers Congress approves (check and balances) Independent Regulatory o Officer is fixed term, removes only for just cause o SEC, FTC (Federal Trade Commission), FDA, FCC, IRS Rule Making Statues = laws Administrative agencies = rules/regulations Making legislative rules which are just as binding as laws o Notice Period Notice of proposed rulemaking. Must notice what rule is, authority for making rule, where and when hearing held Federal Register Emails of change/added rules o Depends on what associations/organizations your member of o Comment Period Usually written Allow expression of views, respond to significant comments and modify, or explain why not If change rule, start back at notice period o Final Rule Binding as if legislation, unless overturned by a court (separation of powers) Investigation Agencies must have knowledge of fact and circumstances pertinent to the proposed rules o Creating and enforcing Inspection and Tests o Gather information to prove a regulatory violation or correct or prevent a bad condition o Example FDA test food Subpoeanas issued o Court of hearing o Compel testimony o Issue a subpoena Duces Recum (SDT) Have to bring specific documents Search Warrants o Need warrant to search business except highly regulated businesses like alcohol, guns, nuclear power Limits on Investigation o Investigation must have legitimate purpose (no fishing) o Information sought must be relevant o Demands must be specific o Request not unduly burdensome 5 Amendment protect privileged information Adjudication – Resolution of disputes by an agency Negotiated Settlement o Less expensive, less hassle, less risk, less hurt reputation o Business agrees to negotiation without complaint o requirements Formal Complaints o Agency complains (on behalf of someone – consumer/victim) o Regulated entity responds o Administrative Law Judge (ALJ) decides The process of Formal Administrative Adjudication o Complaint o Answer o Hearing before ALJ Federal ALJ Appointed by executive branch Doesn’t have to be confirmed Payed by agency Supposed ot be nonbias Similar to regular court judges Duties set out in ALJ statute Vigorous testing Merit based o Issue an order of ALJ Ex. Cease and desist order o Appeal to Governing Board of Agency o Final Agency Order o Appropriate Court for Review of Agency Decision o Court order Judicial Control over Administrative Agencies To be reviewed by a court, must o Have standing o Exhaust all administrative remedies (IMPORTANT) o Have an actual controversy No conflict of interest Scope of Review (issues a court review) o Generally, not facts o Whether exceed authority by Congress Agency rules/powers o Whether property interpret law o Whether violate U.S. constitution o Whether comply with procedural requirements o Whether action arbitrary, capricious, or abuse of discretion o Evidence not support ruling facts Limits on Administrative Agencies Executive o What control do they have? In regards to administrative agencies? Appoint judges Veto power Legislative o Defund May desolve agency or program within agency o Amend/change law or act IRS tax code o Agency powers Spriestma v. Mercury Marine Federal law trumps state law o Supremacy Clause Preemption Doctrine o FAA rule will preement any state rule Federal administrative agency Mom/Dad live in Illinois o Buy a boat from Mercury Marine (established in Maine) o Go to a lake the crosses Kentucky and Tennessee border o Mom dies from propeller on boat Where do they file? Where would be best for the dad to file the law suit? o Illinois because of the state law where they need to have propeller guards Case goes to state supreme court Public Accountability Freedom of Information Act (FOIA) o Government is supposed to be open o Federal agencies must disclose certain records to any person upon request If failed, can take to court o Exceptions National Security Criminal investigation Procedure/description Sunshine Law o Open meeting/conversations/deliberations o Exceptions National Security Criminal Investigation Procedure/description
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