In the case. Sturm, Ruger & Company, Inc. referenced in the e-Acitvity above, filed a complaint in the United States District Court challenging the OSHA?s Data Collection Initiative as unlawful. The court concluded that it lacked subject matter jurisdiction over the complaint, and that the company must pursue its claims through the review process prescribed by the Occupational Safety and Health Act. Summarize how this example of judicial review contributes to the effectiveness of the legal system.

 
LEG 110, WEEK 9, CHAPTER 13: Freight, Logistics, and Specialized Transportation Issues for Import / Export Managers

Slide # Topic Narration
Slide 1 Introduction Welcome to Civil and Criminal Procedures. In this lesson, we will discuss Administrative Law and Administrative Agencies.

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Slide 2 Topics The following topics will be covered in this lesson:
The rise of administrative agencies;
Organization and classification of federal agencies;
Administrative agency powers;
Judicial review; and
Administrative agencies and the regulation of business.
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Slide 3 The Rise of Administrative Agencies Unlike much of our ongoing examination, administrative agencies are nowhere to be found either in the common law or anywhere in old England. They are, in fact, a creature entirely borne of legislative and executive creation and decision making. Even though there were a few bureaus and agencies early in our nation’s history, the true beginning of administrative agencies may be found as the nation was embroiled in the throes of the Great Depression of the 1930s.

As the employment rate reached to one quarter of the populace, and bread lines wound round city blocks, the newly elected president, Franklin D. Roosevelt, promised Americans A New Deal, or a better way of doing business and organizing their government. Because of the many problems that unbridled access to capital caused and the subsequent ruin of the economy, it was decided that there needed to be more people in charge who actually knew was big business was up to and could hence regulate and control it.

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Slide 4 The Rise of Administrative Agencies, continued Out of the three branches of government, the United States could not determine precisely which branch would be able to most intelligently and rationally govern and economy becoming more complex and globally intertwined every day. After a strong impetus from the President and numerous court cases, it was decided that the executive and the Congress did have the constitutional power to establish separately controlled agencies with responsibilities and duties directly delegable from Congress or the executive.

The 1930s saw the formation of many powerful agencies, such as the Federal Deposit Insurance Corporation, the Tennessee Valley Authority, the Securities and Exchange Commission, the Federal Communications Commission and the National Labor Relations Board. However, it wasn’t until the 1946 adoption of the Administrative Procedures Act that the administrative regulatory process in the federal system was standardized and strengthened. How an agency formed, where it received its power, how it was able to promulgate a rule, how courts could determine whether the rule was legal were all made uniform under the APA.

Specifically, the APA is known as the law under which U.S. government federal regulatory agencies create the rules and regulations necessary to implement and enforce major legislative acts. The APA devotes a great deal of time on the rulemaking process, and whether a new rule may or may not stand under the scrutiny of the courts. Much of the purpose of the APA is to promote agency responsibility, flexibility, transparency and control.

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Slide 5 Organization and Classification of Federal Agencies Administrative agencies are commonly classified in terms of their organizational structure. In general, agencies created by Congress are organized into committees or boards, while agencies which serve at the pleasure of the president may be crafted as cabinet-level departments or administrations and are consequently headed by secretaries of government or administrators. Because the cabinet level appointments are nominated by the president and subject to Senate confirmation, there is a little chance these members will be removed for any reason less than dereliction of duties.

Positions within congressionally created agencies are, in contrast, somewhat more tied to the political climate, with it being easier to remove employees. In fact, many opponents of these types of agencies assert that they are ineffective as the decision making power of some agencies may be held hostage to the current political issue of the day. Thus, it has been charged that a congressionally created agency such as the Environmental Protection Agency is somewhat less effective during times of a Republican president than in times of a democratic president. Realizing this, Congress has attempted to deal with this by creating bipartisan agencies, such as the Securities and Exchange Commission, equal representatives of both parties are represented.

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Slide 6 Organization and Classification of Federal Agencies, continued Administrative agencies came into existence because legislative bodies recognized that they could not achieve desired economic and social goals within the existing governmental structure, hence the creation of a New Deal, as referred to above. Specifically, although legislators could provide general policy direction, they possessed limited subject matter expertise and could not devote continuing attention to the multitude of problems that confront our modern society. Agencies, on the other hand, can assemble experts who focus on one area and work toward achieving legislatively determined objectives.

Legislatures establish an administrative agency by enacting a statute called an enabling act. In addition to creating the agency, this act determines an organizational structure, defines its functions and powers, and establishes basic operational standards and guidelines. These standards and guidelines help reviewing courts control any potential abuse of the discretion of an agency’s implementation of power. Courts also use written directives to assess whether an agency is operating according to the legislature’s intent. Administrative agencies can also be created by executive orders authorized by statute.

Agencies perform a variety of functions. For example, they monitor businesses and professions in order to prevent the use of unfair methods of competition and the use of deceptive practices; they help ensure that manufacturers produce pure medication and that food products are safe to consume; and they function to protect society from environmental pollution and insider stock-trading practices.

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Slide 7 Administrative Agency Powers The Supreme Court has found that there is no separation of powers problem with agencies that combine legislative, executive, and the judicial functions of government. This is in part due to the fact that even though a wide range of powers may be delegated to an agency in its enabling act, there are still many checks on its activities. Thus, the creator of the agency, which is usually the legislature, retains the power to eliminate it or to alter the rules governing it. In addition, agency decisions are subject to judicial review.
Agencies that have been granted rulemaking powers are authorized to make, alter, or repeal rule rules and regulations to the extent specified in their enabling statutes. The enabling acts set general standards, authorize the agencies to determine the content of the regulations, and provide general sanctions for noncompliance with the rules. There are essentially three types of administration rules; substantive, interpretive, and procedural.

Substantive rules are used to establish and implement policies that assist an agency in accomplishing its statutorily established objectives. If a federal agency properly exercises its rulemaking power in developing and promulgating substantive rules and the rules are necessary to achieving the objectives established for it by Congress in the enabling act, the rules will have the same legal force and effect as a statute. Courts generally uphold substantive rules if they are satisfied that the agency has examined the issues, appropriately reached its decision, followed established procedures, and acted within the scope of its authority.

An interpretive rule is used to explain an agency’s interpretation of an ambiguous statute, or its understanding of the meaning of an important term that Congress has neglected to define. Although interpretative rules are not enforceable to the same extent as laws, courts will often find interpretive rules persuasive if the agency has relied on its own expertise and experience in the rule’s development, and the agency’s actions are within its statutory scope of authority. Procedural rules are developed to establish standard operating procedures within an agency. These process-oriented rules are devoid of substantive content and agencies are exempted by the APA from compliance with the “notice and comment” procedures.

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Slide 8 Administrative Agency Powers, continued While there are generally two types of rulemaking, most rulemaking is informal and not formal. A formal rule is one that evolves “on the record” in a trial-like process, complete with witnesses and recorded testimony, as well as findings of fact and conclusions of law. The more informal rulemaking procedure, also known as “notice and comment” procedures, underlies the vast majority of agency rules that are promulgated.

In informal rulemaking, agencies are required to publish proposed rules in the Federal Register, thereby providing notice of the agency’s intended action to anyone interested in the matter. Agencies must also accept written submissions from persons interested in commenting on the proposed rule, and if the agency so desires, permit oral presentations. The APA also provides that the agency publish its final version of each rule and an accompanying explanation of the purpose and rationale for the rule in the Federal Register no less than thirty days prior to when the rule takes effect.

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Slide 9 Administrative Agency Powers, continued Agencies cannot operate without access to facts for intelligent regulation and adjudication. Thus, the investigative power is conferred on practically all administrative agencies. Likewise, as regulation has expanded and intensified, so have agencies’ quest for facts gained considerable momentum. The power to investigate or conduct fact-finding is one of the functions that distinguishes agencies from courts. This power is usually exercised in order to perform another primary function properly. However, like any other power or function of the government, it must be exercised so as not to violate any constitutionally protected rights.

The adjudicative power delegated to administrative agencies requires that the agency make a determination of a targeted person’s legal rights, duties, and obligations and for this reason adjudicatory hearings within an agency resemble a court’s decision-making process. Thus, before sanctions can be imposed, an alleged violator is entitled to an administrative hearing that is conducted according to APA procedures and that complies with the due process requirements of the Fifth and Fourteenth Amendments.

Administrative agencies employ administrative law judges ALJ’s to conduct adjudicatory hearings. Like judges, ALJs decide both questions of fact and issues of law, and they are limited to the evidence that is established on the record. ALJs are authorized to issue subpoenas, administer oaths, make evidentiary rulings, and conduct hearings. ALJs are not, however, members of the federal judiciary. They perceive their function as that of implementing and administering a legislative purpose rather than as judges impartially deciding between two litigants.

Finally, ALJs are empowered to make findings of fact and to recommend a decision. The recommendation is sent to the board of final review in the administrative agency, which ultimately decides whether the agency will retain the power to adopt, alter, or reverse it.

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Slide 10 Judicial Review Judicial review is a relatively minor aspect of administrative law, since judges lack expertise in the very technical and specialized subject that is subject to agency regulation. The sheer volume of agency adjudications also makes it unrealistic to expect the judiciary to review more than a small percentage of such decisions. Also, the expense of obtaining judicial review is a barrier to many potential appellants. Thus, unless exceptional circumstances exist, courts are reluctant to interfere with the operation of a program administered by a judicial agency.

Knowing when to seek judicial review is extremely crucial, as improper timing of an action will almost certainly lead to a denial of judicial review. Specifically, before requesting judicial review, parties must address their complaints to administrative tribunals and explore every possibility for obtaining relief through administrative channels, also known as exhausting administrative remedies. Finality and exhaustion focus on whether the administrative position being challenged has crystallized and is, in fact, the true and final institutional decision.

An important exception to this rule exits, however, where the courts will hear a case before a final agency decision if the aggrieved party can prove that failure to interrupt the administrative process would be unfair or inequitable. To determine the extent of fairness, the court will consider (1) the possibility of injury if the case is not heard, (2) the degree of doubt of the agency’s jurisdiction, and (3) the requirement of the agency’s specialized knowledge.

In general, courts tend to defer to most agency decisions, as long as they are not shown to be totally without reason, or “arbitrary and capricious”, with the final rule appearing as the “logical outgrowth” of the proposed rule. Courts will uphold administrative findings if they are satisfied that the agency has examined the issues, reached its decision within the appropriate standards, and has followed the required procedures. However, courts will not uphold an agency’s decision, no matter how well researched, if the court believes that the agency has exceeded the scope of its authority delegated to it by Congress.

As we learned in the recent landmark Supreme Court case of Gonzales vs. Oregon, “an administrative law rule may receive substantial deference if it interprets the issuing agency’s own ambiguous resolution”. In allowing agency’s wide interpretive discretion, the Court maintained that such comity requires a special effort to balance “the necessary respect for an agency’s knowledge, expertise, and constitutional office with the courts’ role as interpreter of laws.” Thus, while a court will review agencies’ rules, it is loath to encroach upon their legislatively created mandates.

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Slide 11 Administrative Agencies and Regulation of Business Congress has neither the time nor the expertise to regulate business. Congress has also decided that the judicial process is not well suited to the task. It has instead entrusted the day-to-day responsibility for regulating business to administrative agencies. Here we will explore the Occupational Safety and Health Administration or OSHA, the Consumer Credit Commission Act, and the Equal Credit Opportunity Act, and note the specific needs that existed which prompted Congress to delegate its power in the creation of independent agencies that were in authorized to promulgate their own rules and rule enforcement provisions in dealing with the specific issues before them.

Historically, the common law provided an employee injured on the job with little recourse against an employer who could use the assumption-of-risk and contributory negligence defenses. Although legislation gradually arose in the early twentieth century to improve worker safety, these laws did not change the practices that led to the dangerous conditions. In response to the problem, in 1970 Congress passed the Occupational Safety and Health Act to improve employees’ safety and working conditions. The act established the National Institute of Occupational Safety and Health to conduct research in the area of employee health and safety. The act also created an administrative agency, called the Occupational Health and Safety Administration, designed to set and enforce environmental standards within the workplace.

The act also authorized OSHA to set penalties, with OSHA being allowed to impose fines up to $70,000 for each willful and repeated violation, and $7,000 for less serious violations. OSHA inspectors also have the right to post a job site as imminently dangerous and obtain injunctions where necessary to shut down a work site because of the existence of dangerous working conditions. While criminal prosecutions are rare, a convicted offender can be fined up to $500,000 for each count and sentenced to a maximum of six months in prison.

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Slide 12 Administrative Agencies and Regulation of Business, continued Designed to promote the disclosure of credit terms and to establish the rights and responsibilities of both creditors and consumers, the Consumer Credit Protection Act or CCPA is much more protective of the consumer than was the common law. This law is also known as the Truth In Lending Act, and mandates that a knowing and willful violator be criminally penalized with fines and incarceration.

The Fair Credit Reporting Act or FCRA of 1970 is designed to ensure that consumers are treated fairly by credit reporting agencies and medical information businesses. Consumers now have the right to know the contents of any adverse report used by a business, the name of the agency that compiled the report, and when such information has resulted in an adverse decision that has been made based on such a report.

The Equal Credit Opportunity Act or ECOA of 1974 is designed to eradicate discrimination in the granting of credit when the decision to grant it or refuse it is based on an individual’s sex, marital status, race, color, age, religion, national origin, or receipt of public assistance. The major effect of this act had been to eliminate sex discrimination. Under ECOA, a married woman can now obtain credit in her own name. A prospective creditor may not ask about an individual’s marital status, childrearing plans, spouse or former spouse, or other similar criteria.

While it is clear that these acts do contribute to a significant amount of regulation of business activity, the purpose is to protect consumers, employees and others who were not protected by the common law. In effect, because of principles of equity and fairness, as well as the importance of any government protecting the safety and welfare of its people, any argument on the powers of these agencies too great must be balanced on the ultimate benefits that the rules may achieve.

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Slide 13 Check Your Understanding

 
Slide 14 Summary We have now reached the end of this lesson. Let’s take a look at what we’ve covered.

We started our discussion by examining the nature administrative law and administrative agencies, focusing our examination on the need for and growth of such regulative agencies during the Great Depression of the 1930s. The standardizing of the formation of administrative agencies culminated with the enactment of the Administrative Procedures Act in 1946, which detailed how an agency was formed, where it received its power, how it was able to promulgate a rule, and how courts could determine whether the rule was legal.

Next, we discussed that there are different types of agencies. First there are agencies created by Congress, generally subject to the political whims of the time, and those created by the executive, most notably cabinet level posts, which are substantially more protected from the wants of the electorate, as such agency heads serve at the pleasure of the President, and may only be dismissed for a serious breach of duty.

Subsequently we turned to the subject of the agencies’ enabling act, arguably one of the most important provisions underlying the existence and purpose of the agency. In addition to creating the agency, the enabling act determines an organizational structure, defines its functions and powers, and establishes basic operational standards and guidelines. These standards and guidelines help reviewing courts control any potential abuse of the discretion of an agency’s implementation of power. Courts also use written directives to assess whether an agency is operating according to the legislature’s intent.

We next looked into the topic of judicial review. we learned that most courts tend to defer to most agency decisions, as long as they are not shown to be totally without reason, or “arbitrary and capricious”. Courts will uphold administrative findings if they are satisfied that the agency has examined the issues, reached its decision within the appropriate standards, and has followed the required procedures.

Finally, we reviewed the importance of several agencies, including the Occupational Health and Safety Administration and the Equal Credit Opportunity Act. We discovered that there was a genuine need for the protections of these acts on behalf of consumers, employees, and others, because there was little or no protection for these groups under the common law. After finding that agencies may wield substantial power, we have learned that in most instances there is a substantial need for the services and protections of well-managed agencies.

This completes this lesson.

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ART HISTORY/Bauhaus vs. Surrealist
Page 1
write one page in response to the following assignment. I belong to second half of the class, The Surrealist Movement.

During the first World War many artists who lived abroad were forced to return to their home country, among these was Kandinsky. Upon his return to Germany Walter Gropius asked him to teach at the Bauhaus. The Bauhaus was designed after the example of church mason guilts in the Middle Ages, meaning that all trades were supposed to work with each other. But, the Bauhaus was not just a school, but a society of artists with strong ties towards each other. In addition to painting, sculpture architecture, the students learned different crafts and had theatre and gymnastic classes. The motto was ?liberty of individuality?.

Similarly strong ties showed the Surrealist artists in France. Max Ernst lived for a while with Paul und Gala Eluard and decorated the walls and doors with his paintings as a thank you. Many ?Cadavre Exquis? are proof of the artistic experiments of the Surrealists.

This week the first half on the class roster will become Bauhaus artists and the second half will belong to the Surrealist movement. Can you convince your opposing group?

 

Key words:

Ready-made, collage, anti-art, objet trouv? (=found objects), subconscious as source of creativity, automatism, Surrealist Manifesto, frottage, cubic simplicity and functionalism, prototypes for mass production, industrial design, created after the example of the church mason?s guilt

 

Artists:

Dada : Zurich, Switzerland (Jean Arp, Tristan Tzara, Hugo Ball, Richard H?lsenbeck); France (Marcel Duchamp, Francis Picabia); Germany (Max Ernst, Kurt Schwitters, John Heartfield, Hannah H?ch)

 

Surrealism: Andr? Breton, Giorgio de Chirico, Max Ernst, Louis Aragon, Salvador Dali, Meret Oppenheim, Ren? Magritte, Joan Mir?

 

Bauhaus: Walter Gropius, Paul Klee, Johannes Itten, Laslo Moloholy-Nagy, Vassily Kandinsky, Mies van der Rohe, Marcel Breuer

International Style: Le Corbusier, Mies van der Rohe, Rudolph Schindler, Richard Neutra, Eero Saarinen

 

Page 2

Please provide one paragraph responses to the following posts either agreeing or disagreeing or asking questions. Please place the number in front of each paragraph that corresponds with the number of the post.

Post #1
Surrealism was an artistic movement that sought to liberate the mind or imagination. Surrealism dominated the inter-war years and was a reaction against violence and the rationality which led to the violence in the first place. It was not just an intellectual movement, but a political movement as well (Honour and Fleming 801). With the publication of Andr? Breton?s ?Manifesto of Surrealism?, the new art movement seemed to take hold. Breton was deeply influenced by the psychological theories and dream studies of Sigmund Freud which went along with the dream-like qualities of Surrealist paintings.

One of the first artists to work with Surrealist techniques and imagery was Giorgio de Chirico. His painting, Mystery and Melancholy on a Street, 1914 depicts an eerie, desolate street with long shadows that give a dream-like feeling to it. The street is empty except for a young girl playing. We get the feeling that something profound is about to take place. We can see a threatening shadow around the corner that gives us a bad feeling. The viewer is left to wonder what the impending tragedy will be.

Salvador Dali?s The Persistence of Memory, 1931 is another example of Surrealism. Again we see an eerie dream-like scene of a strange, other-worldly place. It almost looks as if it is a hallucinatory vision. With melting clocks, ants swarming over a timepiece and a withering tree that gives the viewer the feeling of lost time or inevitable death.

Surrealism created a great impact in the art world. Surrealist paintings are filled with surprising imagery, deep symbolism and the desire to go against the norm. Surrealist artists such as Giorgio de Chirico, Joan Miro, Salvador Dali and Max Ernst most certainly had an impact on future forms of art such as Abstract Expressionism.

 

Fleming, John and Honour, Hugh. A World History of Art, 7th Ed. London: Laurence King Publishing. 2009. Print

POST#2
The beginning of the 20th century witnessed introduction of innovative ways in architecture. Walter Gropius developed a particular vision of ?total architecture.? This concept was his foundation for the generations of students at a school called Bauhaus. When Gropius became the director of the Weimar School of Arts and Crafts in Germany, his vision was to train artists, architects, and designers to anticipate the needs of the 20th century. His vision included the development of an extensive curriculum based on specific principles incorporated into three segments. A strong basic design and craftsmanship as essential to good art and architecture was his first goal. It was followed by promoting unification of art, architecture, and design. His third goal was reiterate in-depth knowledge of machines. He demanded that architects, painters and sculptors know how to distinguish the different parts that make up a building as an object. Bauhaus courses include a variety of disciplines which include weaving, bookbinding, carpentry, stained glass, advertising, and typography to name a few in addition to painting, sculpture and architecture. His ultimate goal was to incorporate art with industry. In 1925, Gropius? Bauhaus moved to Dessau where he built the Dessau Bauhaus (Kleiner, 412), which became the Bauhaus? architectural manifesto. The building consisted of workshop and class areas, dining room, theater, a gym, and studio apartments. One of the building?s major wings, the Shop Block, was three-stories high, and housed a printing shop and dye works facility. The glass enclosure created a streamlined and light effect. The construction of the building, covering reinforced concrete frame in glass was Gropius? motto that architecture should avoid ?all romantic embellishment and whimsy.?(Kleiner, 412). The Bauhaus group in Germany encouraged total architecture, which called for the combination of all the arts in constructing modern living surroundings.

Kleiner, Fred S. Art through the Ages: A Concise Global History. Second Edition. Wadsworth Cengage Learning. Boston MA. 2009

 
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