LEGISLATION AND REGULATION NOVAK WINTER 2015
PART I: THE RISE OF THE LEGISLATIVE, ADMINISTRATIVE, AND REGULATORY STATE
Case Name
Year
Facts
Holding
Notes/Other Opinions
INTRODUCTION: BEGINNING AT THE BEGINNING
Aren’t Property Rights Enough? The Limits of Common Law Regulation
Attorney General v. Richards
1795
The Defendants in 1784 had erected wharves and docks etc in Portsmouth harbour. Prevented boats sailing or mooring. Prevented free current of water to carry off the mud. This was prejudicial and dangerous to the harbour, hurtful to Gosport, as it prevented boats coming into the town.
Issue was whether the Defendants should be restrained from building further, and existing buildings eliminated, with the harbour being restored.
Farwell v. Boston & WRR Corp.
1842
New York City Harbormaster Statute
1819
created harbour masters with the authority to regulate and station vessels in New York harbour. The harbour masters had the power to remove vessels and to impose fines. Proceeds from the fines went to the hospital treasurer.
Court held there was no implied indemnity under the master-servant relationship for negligence or accident. Fellow servant rule – no vicarious liability because there is privity between them. Person takes on ordinary risks when taking up employment. P might have an action against the other employee. Presumably he did not have deep pockets.
MacPherson v. Buick Co.
1916
Did D owe a duty of care to the ultimate purchaser of an automobile which collapsed, injuring the purchaser?
D had a duty to inspect as it knew the danger and knew the automobile would be purchased by third parties.
The Development of American Legislation and Regulatory Police Power
Vanderbilt v. Adams
1827
Commonwealth v. Alger
1851
“Standards of American Legislation” by Freund
Describes the transition from private common law to legislative police power regulation as a baseline transformation. Describes the limits of the common law as being:
more concerned with maintaining order and authority (not surprising as this was judge made law), not concerned with protecting citizens;
became a law for the rich;
nuisance did not modify the behavior of public utilities and fraud was too lax;
there was no concept of public nuisance; and
did not prevent practices which injured the weaker elements of society.
THE INVENTION OF THE MODERN ADMINISTRATIVE REGULATORY STATE
Common Carriers, Public Utilities, and the Emergence of Modern Economic Regulation
“The Regulation of Steamboats”, by Mashaw
Price setting by the government was a fact of life
Story about the Rise of Modern Administration
The story of steamboats & development of public utility regulation
Munn v. Illinois
1877
Importance” Usually the first case learned in Con law
What is an Officer and What is an Agency? The First Independent Federal Regulatory Commission & Modern Administration
“Introduction” by Parrillo
ICC v. Brimson
1894
Era of Modern Administration
The Emergence of Superstatutes: Antitrust and the Federal Trade Commission (FTC)
“Superstatutes”
Super Statutes- successfully penetrate public normative and institutional culture
FTC v. Gratz
1920
Dissent: The courts have essentially undermined the commission’s ability to prevent harm (and do it’s job) through this holding
Example of early adjudicative power
Key: Tension between judicial authority to decide (McReynolds) and delegation of power to administrative agency (Brandeis’ dissent)
Health, Safety, & Welfare: Limitations of Common Law II: The Case of Torts
Farwell v. Boston & Worchester Railroad
1842
Worker’s Compensation
Issue: Are D’s liable for the negligence of their employees? If yes, P has a cause of action & facts will be submitted to jury. If no, P does not have a cause of action.
Example of Worker’s Compensation turning to the administrative regime
Key: What is the best regime? Benefits and limits of common law v. administrative regime
McPherson v. Buick Motor Co.
Conclusion: Beyond the Common Law as Regulatory Regime
“Justifications for Regulation”
PART I
Case
Industrial Union Department, AFL-CIO v. American Petroleum Institute
1980
OSHA interpreted OSHAct to reduce benzene level to 1 ppm. Sec can set stndrd ‘to extent feasible’ (balancing).
Agency: OHSA- ensure safe and healthy working conditions, protect workers from workplace harm
3 Approaches To Non-Delegation
Rehnquist
Plurality Opinion
Thurgood Marshall’s dissent
Ct makes up ‘signif risk’ stndrd, rdg into “safe.” Finds agency interp unrsbl. Not about to pt of business collapse. Hugely expensive. Constitutional avoidance. (Rehnquist concur: Cong should make lives/money value balancing. Wants Cong to make fund/crit decisions. What is this?)
Rehnquist’s Opinion- unconstitutional delegation of power
Rehnquist’s policy considerations for preferring non-delegation policy
Maintain legislative power to Congress
If there is no intelligible principle, how do you address concerns?
Plurality rejected OHSA’s broad interpretation of the states because it believed that interpretation of the statute might violate the delegation doctrine
But there was in intellig principle. Other factors determing deleg or not: moral v. tech judgm(?), need for deleg, admin proced, possib of jud review, complexity or tech-ness of deleg, judg signif, social consensus
Ct has largely abandoned non-delegation and case signifies social consensus
Court used nondelegation doctrine to justify interpreting a federal statute narrowly
“No Intelligible Standard”
Case
Key: Why use non-delegation doctrine harshly when you can just use it to interpret statutes constitutionally? Case establishes the intelligible principle and delegation of legislative power
Key: Rehnquist’s Opinion is the most important
Compare this outcome to that of American Trucking
Relationship between Agencies and Congress
