Class 13: Regulatory Law and Policy

Question 1

The principles upon which governmental law, regulation, funding priorities and courses of action are based.

Answer 1

Public Policy

Question 2

Government intervention in economic activities using commands, controls or incentives.

Answer 2

Regulation

Question 3

These are all reasons to _____:

-Preserve fair competition (Economic)
-Protect consumer choice & honest info (economic)
- Product and personal safety (Social)
-Address negative externalities (Social)
E.g., EPA rules on pollution
-Achieve Social Goals
Fairness, Equal Opportunity, health and safety, environmental quality.

Answer 3

Regulate

Question 4

According to the Wilson Matrix

Concentrated Benefits, and Concentrated Costs are _____

Answer 4

Interest Group Politics

Outcome depends on which group is most well funded and effective.

Question 5

According to the Wilson Matrix

Concentrated Benefits, and Diffuse Costs are _____

Answer 5

Entrepreneurial Politics

In Client Politics, the Beneficiaries Will Try to Become The Clients of the Lawmakers, so the latter act in their favor.

Question 6

According to the Wilson Matrix

Diffuse Benefits, and Concentrated Costs are _____

Answer 6

Client Politics

For Alternative To Be Adopted, an “Entrepreneur” Must Mobilize Those Who Are Not Incentivized To Act Because Each Will Only Benefit A Little

Question 7

According to the Wilson Matrix

Diffuse Benefits, and Diffuse Costs are _____

Answer 7

Majoritarian Politics

Outcome will largely depend on which group is able to command a political majority.

Question 8

What are the 4 types of agencies

Answer 8

Federal
State
Independent Regulatory Commissions
Executive Branch Agencies

Question 9

Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.

One of these functions is ________ meaning that agencies have expertise and can make rules without the political fanfare sometimes.

Answer 9

Rule making (legislative function)

Question 10

Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.

One of these functions is ________ meaning that Agencies can hold hearings (mini-trials w/o juries) before ALJs to assess when rule is violated

Answer 10

Adjudication (judicial function)

Question 11

Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.

One of these functions is ________ meaning that Can issue subpoenas, levy civil penalties, refer matters to DOJ

Answer 11

Investigations & Enforcement (exec function)

Question 12

Agencies have quasi-legislative, quasi-judicial, quasi-executive functions.

One of these functions is ________ meaning to Award grants/loans; welfare/SS disputes, licenses, leases, etc.

Answer 12

Discretionary Actions (exec function)

Question 13

Agencies Are Governed by Administrative Procedure Act. _____ Requires:

-Rules require notice to Public and Comment Period
Evaluation of Comments
-Adoption and Publication in Federal Register/CFR
-Rules are subject to judicial review, but policy statements and agency procedure are not.

Answer 13

Informal Rule-Making

Question 14

Agencies are creatures of ____

Answer 14

Legislature

Question 15

These describe ____

• Agency must act within delegated authority
• But use of vague standards is upheld: e.g., acting in the “public interest,” to “prevent unfair methods of competition”
• Broad discretion

Answer 15

Delegation of Authority

Question 16

What Limits Imposed by Bill of Rights Are Agencies Subject to?

Answer 16

5th & 14th Am. Procedural due process limits apply: notice and hearing required before taking away an entitlement.

Question 17

What Limits Imposed by Bill of Rights Are Agencies NOT Subject to?

Answer 17

self-incrimination, probable cause (IRS), full inspections without narrow warrants

Question 18

Factors AffectingAgency Rule Making (Three Major)

Answer 18

• Political influence (Executive and Congressional)
• Judicial Review
• Private Interest Influence

Question 19

_______ - provided there is statutory authority, only “arbitrary and capricious” rules are not permissible.

(within the Judicial Review of Agency Rule-Making section)

Answer 19

Deferential Review of rule-making

Question 20

Agency ______(Adjudication/Investigation) - Hearing before agency or administrative law judge (no jury)
Less procedural protections but right of appeal to federal Ct.
Admin Actions are now commonly used by the SEC to determine securities violations.

Answer 20

Adjudication

Question 21

Agency \_\_\_\_\_\_(Adjudication/Investigation) - Agencies have subpoena power to demand records and witnesses and conduct administrative “searches”; 
4th Amendment loosened; 5th amendment offers limited protection only when it comes to documents.
Can impose fines, disgorgement and order debarment

Answer 21

Investigation

Question 22

________Discretionary Actions - Awarding grants and contracts, resolving tax disputes and unemployment compensation claims

Answer 22

Informal Discretionary Actions

Limits:
Agency must follow its own rules
Agency must provide explanation of its decision.

Question 23

Review of ___________

In the context of agency adjudications, ALJs often make findings of fact.
When challenged, Courts will review fact finding:
But, they will generally be upheld, provided the Agency had substantial evidence (i.e., whether the record could reasonably support the agency finding).

Answer 23

Fact Finding

Question 24

Review of ___________

Court will give deference to any “reasonable” interpretation of a Statute made by an agency.
But not all interpretations are reasonable.

Answer 24

Statutory Interpretations

Question 25

_____________ Act allows citizens to request agency records for virtually any purpose, except:
National Security documents
Internal personnel docs
Trade secrets
Info compiled for law enforcement purposes

Answer 25

Freedom of Information Act (FOIA)

Question 26

no judicial review of rules until Agency has tried to apply and enforce it. AKA, the rule of the agency must be ____

Answer 26

ripe

Question 27

Standing to Sue and agency. Must satisfy one of 3 prongs..

Answer 27

Concrete, particularized and actual harm
Causation – injury traceable to challenged action
Redressibility by Courts