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May 16, 2007 n^o. 490 - Vol. 5
 

"I wish there was a knob on the TV to turn up the intelligence. There's a knob called 'brightness,' but it doesn't work."

                                                                                              Unknown

 
What is administrative law? Is the subject of our Wednesday's Grammatigalhas

• Top News

EU to target illegal employment

Businesses leaders across Europe caught employing illegal immigrants could face time in jail, under proposals due to be announced by the European Union. The European Commission also wants to increase the number of police raids on companies suspected of breaking rules. As much as 16% of Europe's business is done off the books. Hundreds of thousands of people are believed to be doing jobs without the necessary paperwork across Europe. But illegal workers become more than just statistics when things go wrong.

LA church sale to fund sex claims

The Roman Catholic archbishop of Los Angeles has said his archdiocese will sell its main office to raise money to settle lawsuits for sexual abuse. Cardinal Roger Mahony also said some 50 other buildings could be sold to settle hundreds of lawsuits brought by people who had been abused by priests. In December, the archdiocese - America's largest - paid some $40m (£20m) to settle 46 cases. But it still faces more than 500 claims that have been in litigation for years.

Reuters agrees to Thomson buyout

News and information group Reuters has agreed to be bought out by Canadian financial data provider Thomson in a deal worth about £8.7bn ($17bn). The tie-up will create the world's biggest financial news and data firm, allowing the new company to leapfrog its main rival, US-based Bloomberg. Other news firms are also eyeing deals as they seek to cut costs, squeeze rivals and increase their client base. Reuters and Thomson reckon their deal will save them $500m (£250m) a year. Reuters shares in London closed 3.39% or 20.5 pence higher at 626p.

Gonzales deputy resigns amid row

The second highest official in the US Justice Department, Paul McNulty, is resigning amid a political row over the sacking of eight federal prosecutors. The affair is being investigated by a Senate committee. The White House denies the firings were politically motivated, citing poor performance. Attorney General Alberto Gonzales praised McNulty's record of service and called him "a dynamic leader". Correspondents say the decision puts pressure on  Gonzales to also resign.

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• MiMIC Journal

China defends its role in Africa

Chinese Premier Wen Jiabao has rejected criticism that his country is only interested in Africa because of its huge wealth of raw materials. He told a meeting of the African Development Bank in Shanghai that China was committed to helping the continent develop socially and economically. He also called on rich nations to do more to assist Africa, by helping with aid, trade and debt relief. This is the first time the ADB's annual meeting has been held in Asia. It is a sign of China's growing importance for the continent, say analysts.

• Grammatigalhas

Legal Meaning Is Not Everyday Meaning

Government agency

A government agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of types of agency. Although usage differs, a government agency is normally distinct both from a Department or Ministry, and other types of public body established by government. The functions of an agency are normally executive in character since different types of organization (such as commissions) are normally used for advisory functions, but this distinction is often blurred in practice.

A government agency may be established by either a national government or a state government within a federal system. (The term is not normally used for an organization created by the powers of a local government body.) Agencies can be established by legislation or by executive powers. The autonomy, independence and accountability of government agencies also vary widely.

Everyday "Legal" Jargon

Administrative law

Administrative law (or regulatory law) is the body of law that arises from the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies world-wide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.

Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking.

Administrative law may also apply to review of decisions of so-called quasi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that effect the legal rights of members of a particular group or entity.

While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). Judicial review of administrative decision, it must be noted, is different from an appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in appeal the correctness of the decision itself will be under question. This difference is vital in appreciating administrative law in common law countries.

The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law). Administrative law, as laid down by the Supreme Court in India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.

The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law, such as the writ of mandamus and the writ of certiorari. In certain Common Law jurisdictions, such as India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.

Administrative Law is the body of rules, orders, and decisions issued by administrative agencies, such as the federal Securities and Exchange Commission or a state’s public utilities commission.

Enabling Legislation: Legislative action specifying the name, purpose(s), function(s), and power(s) of the agency created by the legislation.

As a general rule, an agency lacks the power to act beyond the scope of its enabling legislation.

Administrative Agencies: Agencies authorized by federal or state legislation to make and enforce rules to administer and enforce legislative acts (e.g., the Social Security Administration).

Executive Agencies: Agencies formed to assist the President or, at the state level, the Governor, in carrying out executive functions (e.g., the Justice Department).

Independent Regulatory Agencies: Agencies neither designed to aid nor directly accountable to the legislative or executive branches (e.g., the Securities and Exchange Commission).

Agency powers and the constitution

Delegation Doctrine: Article I, Section 8 of the Constitution empowers Congress to make all laws necessary for executing its specified powers.  The courts have interpreted this passage as empowering Congress to establish administrative agencies and vest them with rulemaking, enforcement, and adjudicative powers.

Rules vs. Statutes: While the Constitution empowers only Congress to make statutory laws, administrative agencies, to whom Congress delegates the responsibility for enforcing many of its statutory laws, are empowered to make rules, which are as legally binding as the statutes passed by Congress (and, perhaps, more likely to be vigorously enforced because the power to enforce agency rules generally lies with the same agency that made the rule in the first place, whereas the power to enforce Congressional statutes generally rests with some arm of the Executive Branch).

Administrative rulemaking

Rulemaking: The process of formulating new regulations.  Rulemaking by federal agencies typically occurs in the following steps:

Notice of Proposed Rulemaking: A proposed rule and some discussion of its rationale are published by the agency in the Federal Register.  The notice invites public comment and notifies the public of the times and places of any hearings on the proposed rule.

Comment Period: Following publication in the Federal Register, the agency must allow ample time for public comment.  The agency need not respond to all comments, but it must respond to any significant comments that bear directly on the proposed rule by either modifying the proposed rule or explaining why the modification was not made.

Final Rule: Once the final version of the rule is decided upon by the agency, it will be published first in the Federal Register and then compiled annually in the Code of Federal Regulations.

Agency investigations

Both as part of the rulemaking process and as part of the enforcement of the rules, agencies conduct inspections of regulated entities’ facilities or business records.

While many businesses voluntarily comply with agency requests for an inspection, those that do not may face:

• a subpoena compelling the entity to produce records (subpoena duces tecum) or to provide testimony (subpoena ad testificatum), or

• a search warrant compelling the entity to make its facilities available to the agency for inspection.

To determine if an agency is overstepping its bounds in conducting an investigation, courts may consider:

1. whether the investigation has a legitimate purpose;

2. the relevance of the information sought;

3. the specificity of the agency’s demand for testimony or documents; and

4. the burden the demand places on the entity.

Agency adjudication

If an agency determines that an entity has violated one or more rules, the agency may take administrative action against the entity.  When possible, the agency will seek to secure the entity’s voluntary compliance, thus avoiding the expense and inconvenience of full-blown judicial or quasi-judicial proceedings.  If voluntary compliance is not forthcoming, agency adjudication proceeds as follows:

A formal complaint is filed by the agency, to which the subject entity files an answer.

Following a period permitted for discovery, the agency and the entity will appear before an administrative law judge (ALJ) who will conduct a quasi-judicial (or "court-like") proceeding, the exact nature of which varies from agency to agency.

The ALJ issues an initial order, which is subject to appeal to the agency’s governing board (e.g., the actual commissioners of the Federal Trade Commission).

After disposing of any appeal, the agency issues a final order, which may be appealed to a designated court (e.g., the U.S. Court of Appeals for the D.C. Circuit)

Limitations on agency powers

Judicial Controls: Most agency decisions are subject to judicial review, provided that the party seeking review can establish that

1. it has standing to sue the agency,

2. there is an actual controversy between it and the agency, and

3. it has exhausted all administrative remedies.

Courts defer to agency fact-finding and actions, and generally review agency decisions only for procedural irregularities, failure to properly interpret applicable statutes, lack of evidentiary support, constitutional issues, and abuse of agency power.

Executive Controls: A president or governor generally has the power to appoint agency officials and to veto enabling legislation as well as appropriations.

Legislative Controls: Congress or a state legislature must enact and may review and amend enabling legislation, and generally controls appropriations (subject to executive veto) to an agency.  Congress may also “freeze” the implementation of new rules before they take effect. 

Public accountability

Freedom of Information Act (FOIA): Requires federal agencies to disclose certain records to any person on request, subject to restrictions as to time and place, and to make their records available electronically – including, but not limited to, via the Internet.  Some states have similar legislation.

"Sunshine" Legislation: Subject to certain specified exceptions, agency meetings must be (1) noticed to the public in advance and (2) open for public observation, if not participation.

Regulatory Flexibility Act (RFA): Provides that, whenever a new regulation will have a "significant impact" upon a "substantial number" of small businesses, the agency must consider less burdensome alternatives, notify small businesses about forthcoming regulations, and reduce the record-keeping responsibilities of small businesses.

Small Business Regulatory Enforcement Fairness Act (SBREFA): Empowers federal courts to enforce the RFA, requires federal agencies to explain new regulations in "plain English," provides ombudsmen to receive comments and complaints from small businesses, and entitles small businesses to recover expenses and legal fees incurred due to "excessive" agency demands.

As If Your Life Depended On It...  or How to get to Carnegie Hall? - Practice, practice

Cleanup / Clean Up

"Cleanup" is usually a noun: "the cleanup of the toxic waste site will cost billions of dollars." "Clean" is a verb in the phrase "clean up": "You can go to the mall after you clean up your room."

Job titles

The general rule is to capitalize a title like "President" only when it is prefixed to a particular president's name: "It is notable that President Grover Cleveland was the first Democratic president elected after the Civil War." Similar patterns apply for titles like "principal," "senator," "supervisor," etc.

But often the American president's title is used as a sort of substitute for his name, and routinely capitalized despite the objections of some style manuals: "The President pardoned the White House Thanksgiving turkey yesterday." And the British would never write anything other than "The Queen ate strawberries in the Royal Enclosure." The Pope is also usually referred to with a capital P when the specific individual is meant: "The Pope announced that he will visit Andorra next month." Following these common patterns is not likely to get you in trouble unless your editor has adopted a contrary rule.

If no specific individual is meant, then definitely use lower case: "We need to elect a homecoming queen"; "The next president will inherit a terrible budget deficit."

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• Brief News

Sarkozy pledges new era of change

Nicolas Sarkozy took over as French President from Jacques Chirac on Wednesday, vowing to usher in a period of deep reforms to help his country adapt to a fast-changing world.

Wolfowitz in final plea for job

World Bank President Paul Wolfowitz has met the bank's 24-member board to respond to allegations of favouritism. Wolfowitz is under pressure to go after a panel said he had broken the bank's code of conduct by helping secure a pay rise for his girlfriend. He told the board their decision would affect how the US and the world viewed the World Bank. The board has the power to dismiss Wolfowitz, and will meet again on Wednesday to consider his fate.

Brazilian guilty of US nun murder

A Brazilian rancher has been found guilty of killing US-born nun and environmental activist Dorothy Stang.A court in the city of Belem sentenced Vitalmiro Bastos Moura, 36, to 30 years for paying gunmen to shoot the 73-year-old missionary dead in 2005. Sister Dorothy campaigned for poor farmers' rights and to preserve the rainforest from loggers and developers.

Colombia 'militia link' alleged

A Colombian ex-paramilitary leader claims current members of the government conspired with his group.

Colombia police chiefs forced out

The head of Colombia's national police force and the country's intelligence chief have both resigned amid a scandal over illegal wiretapping.

Anger at Pope's Brazil comments

Indigenous leaders in Brazil have reacted angrily to Pope Benedict's comments that their predecessors had willingly converted to Christianity. One Amazon Indian leader, Jecinaldo Satere Mawe, said the Pope's remarks had been arrogant and disrespectful. Pope Benedict XVI told Latin American bishops in Brazil that American Indians had been "silently longing" to become Christians 500 years ago. The Pope has now returned home after his five-day trip to Brazil. The Vatican has made no further comment.

US to ignore Russia missile fears

The US will not allow Russia to stop it from deploying anti-missile defences in Europe, US Secretary of State Condoleezza Rice has said in Moscow. "I don't think anyone expects the United States to permit a veto on American security interests," she said after meeting President Vladimir Putin.

US names general to be 'war tsar'

Bush has named a senior general to be the first American "war tsar". Lt Gen Douglas Lute, currently serving as director of operations at the Pentagon, will co-ordinate the ongoing conflicts in Iraq and Afghanistan. He will report directly to Bush as deputy national security adviser.

Key terrorism trial starts in US

The trial has begun in Florida of US citizen Jose Padilla and two other men for conspiracy to murder US nationals and aiding Islamic extremists. After his arrest in 2002, Padilla was accused of planning to detonate a radioactive bomb and held in a military jail without charge for three years. That allegation will not be part of the trial in Miami. Prosecutors opened their case saying the three were part of a secret terror support cell based in south Florida. Defense lawyers said that the charges against the three were "a lot of rhetoric" but showed "no evidence".

Arcelor Mittal sees profit up 40%

The world's largest steel firm, Arcelor Mittal, has reported strong quarterly profits, as higher demand for steel has pushed prices up. Net income rose 40% to hit $2.25bn in the three months to 31 March, from $1.6bn a year ago.

Sentencing Panel Changes Crack Recommendation

The U.S. Sentencing Commission has called on Congress to reduce the tough penalties for federal crack cocaine crimes. And in a sign that the commission isn't waiting for Congress to change the law, it is using its own authority to recommend shaving sentences for most federal crack cocaine offenses.

Tyco to settle lawsuits over massive fraud

Diversified manufacturer Tyco International Ltd. said yesterday it agreed to pay almost $3 billion to settle most class-action lawsuits that followed the accounting scandal that sent former chief executive Dennis Kozlowski to prison. Tyco, which plans to split into three companies in the coming weeks, said it would pay $2.98 billion in the near term into a fund for plaintiffs in 32 class-action lawsuits. The deal, one of the largest class-action settlements ever by a single company, still requires court approval.

Brazil, Argentina agree to boost energy cooperation

Brazil and Argentina agreed to establish a joint working group to boost bilateral energy cooperation. The working group is scheduled to hold its first meeting in July to set up its joint energy strategy. They will stress the importance of boosting bilateral cooperation in bio-fuels, as both countries are bio-fuels producers and exporters.The two countries will also sign an agreement on nuclear technology cooperation. Argentina recently decided to resume its nuclear power plan while Brazil owns two nuclear power plants.

New York State Accuses Dell Of Deceptive Business Tactics

New York Attorney General Andrew Cuomo filed a lawsuit yesterday that accuses computer maker Dell Inc. of deceiving consumers to increase computer sales. The lawsuit, filed in Albany County Supreme Court, charges that Dell and affiliate Dell Financial Services LP have engaged in fraud, false advertising and deceptive business practices. The suit alleges that Dell, among other things, misleads customers with promises of attractive financing only to leave them with expensive credit lines. The lawsuit says Dell denies promised rebates, and fails to honor warranties and service contracts by misleading customers and making it difficult to get technical support. Dell spokesman Bob Pearson said the Round Rock, Texas, company would fight the complaint. "Our customers are our top priority at Dell," he wrote in an emailed statement. "We are confident that our practices will be found to be fair and appropriate."

Electronic Evidence

Legislation in the US requiring companies to make electronic information available as evidence in court will likely boost demand for search software.

Germany Constitutional Court approves limits on unnegotiated legal fees

Germany's Federal Constitutional Court  Tuesday upheld  a 2004 statute limiting lawyers fees  unless payment is negotiated beforehand. The court ruled that because the lawyers are able to negotiate higher rates with clients, a statutory cap for unnegotiated fees is permissible and justifiable as a way to protect clients from excessive expenses. A lawyer for Kapellmann & Partner  told Bloomberg that the court failed to address a key issue with the law that relates to firms that represent government agencies. As agencies normally do not accept individual fees, lawyers do not have the ability to negotiate higher salaries, like they do when dealing with private clients. In a statement  responding to the court's decision, Dr. Bernhard Dombek , president of the German Federal Bar Association , complained that such caps shift the risk of legal fees to the lawyers.

Increase in US crime rates partly attributable to youth crime surge

US Attorney General Alberto Gonzales  said in a speech  to the National Press Club Tuesday that the nationwide increase in crime is due in part to the increase in gang and gun violence among teenagers. Gonzales said that the Department of Justice (DOJ)  will spend $50 million this year in efforts to reduce crime in these areas, including the use of $31 million in new funding to combat gang violence. The DOJ also announced a new initiative  focusing on state and local partnerships to fight violent crime. As a part of that plan, the DOJ plans to hire 70 additional prosecutors, make $125 million available to state and local governments for their efforts in fighting violent crime, and provide anti-gang training to state local police.

• Daily Press Review

Africa

FDC President Kizza Besigye has taken CID Director Elizabeth Kuteesa to court over criminal  misconduct
Daily Monitor, Independent daily of Kampala, Uganda

The going gets tough for ODM-K aspirants
East African Standard, Liberal daily of Nairobi, Kenya

Fresh controversy over 'Kofi Boakye cocaine tape'
Ghanaian Chronicle, Independent, published  in Accra, Ghana

Fears of bread shortages in Zim
Mail and Guardian, Liberal daily of Johannesburg, South Africa

Jubilee leads campaign against vulture fund ruling
Times of Zambia, Government-owned daily of Lusaka, Zambia

Americas

Smooth sailing for 11+
Barbados Advocate, Independent daily of St Michael, Barbados 

A view from the bridge
Buenos Aires Herald, Liberal daily of Buenos Aires, Argentina

World Bank still pondering Wolfowitz's fate
The Globe And Mail, Centrist daily of Toronto, Canada

Choc'late reads, fasts for peace in Jamaica
Jamaica Gleaner, Centrist daily of Kingston, Jamaica

Pope backs excommunication of Mexico City lawmakers
The Guadalajara Colony Reporter, Independent weekly of Guadalajara, Mexico

Asia Pacific

17-year-old boy turns self in with severed head / High schooler tells police he killed mother
Daily Yomiuri, Conservative daily of Tokyo, Japan

African Development Bank opens annual meetings
People's Daily Online, Pro-government daily of Beijing, China

Rudd will now meet Dalai Lama
The Sydney Morning Herald, Centrist daily of Sydney, Australia

Kalaiya Shuts down after Kidnapping of a Child
The Himalayan Times, Independent daily of Kathmandu, Nepal

Peso breaches 47:1
The Manila Times, Pro-government daily of Manila, Philippines

Women want 'bocor' MPs penalised
The Sun, Independent daily of Kuala Lumpur, Malaysia

Europe

Vowing Change, Sarkozy Succeeds Chirac as French President
Deutsche Welle, International broadcaster of Cologne, Germany

WWF: Finland falls short of target in protecting Baltic Sea
Helsingin Sanomat, Centrist daily of Helsinki, Finland

Judge who suspended Yushchenko's decree victim of road accident
Interfax, Government-owned news agency, Moscow, Russia

Bodies of mother and child found at home
Irish Examiner, Centrist daily of Cork, Ireland

Russia, EU Scramble to Save Summit
The Moscow Times, Independent, English-language daily of Moscow, Russia

Wolfowitz's career hangs by a thread
The Scotsman, Centrist daily of Edinburgh, Scotland

Merrill Lynch chief resigns to run for the AKP
Turkish Daily News, Independent daily of Istanbul, Turkey

Middle East

As illusive as ever
Al-Ahram Weekly, Semi-official, English-language weekly of Cairo, Egypt

Security Brings Investments to Kingdom: Naif
Arab News, Pro-government, English-language daily of Jidda, Saudi Arabia

Welch stresses America's 'firm' commitment to Lebanon
The Daily Star, Independent, English-language daily of Beirut, Lebanon

Fierce factional fighting in Gaza kills 16
Gulf News, Independent daily of Dubai, United Arab Emirates

IAF hits Hamas Gaza HQ; Hamas-Fatah clashes rage
Ha'aretz, Liberal daily of Tel Aviv, Israel

Iran's education minister survives Majlis impeachment
Islamic Republic News Agency, Government-owned news agency of Tehran, Iran

At least four killed as IAF pounds Hamas base in Rafah
The Jerusalem Post, Conservative daily of Jerusalem, Israel

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