To prove either side of the argument, the sensitivity and impact needs to be assessed -- there is no blanket rule of everything being transparent, or everything being private; it is dependent upon the sensitivity and overall impact of the issue at hand.
3. Sources: Hunold, C. And B. Peters. (2004). "Bureaucratic Discretion and Deliverative Democracy." Transformation in Governance. IGI Publishing; Holzer, M. And K. Yang. (April 1, 2005). "Administrative Discretion in a Turbulent Time: An Introduction. Public Administration Quarterly. Cited in: www.highbeamresearch.com.
4. How does a cost-benefit analysis used in the determination of due process?
Using, for example, Miranda v Arizona, a cost-benefit analysis is used to determine due-process in the sense of the decision's impact on law enforcement and the community needs to be taken into consideration before a ruling of using Miranda, 5th Amendment Rights, and basic procedures. The Rehnquist Court's decision in the idea of cost-benefit, despite Justice White's suggestion of inconsistency, holds that if the benefits are considerably less and the costs are considerably higher, different legal approaches are necessary. In New York v Quarels, however, the Court concluded that because of the nature of the emergency, the benefit to public safety of dispensing with Miranda rights outweighed any consequences, but did remark that the Defendant could still argue that a confession was involuntary under traditional Due Process Standards. The totality of the issue, for instance in Dickerson v U.S. shows that the characteristics of the particular interrogation need to fit the test of totality of circumstances.
Sources: Miranda v Arizona, (1966), 384 U.S. 436, Cited in: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0384_0436_ZS.html; New York V Quarles (1984) 467 U.S. 649, Cited in: http://www.enotes.com/american-court-cases/new-york-v-quarles; Dickerson v United States, Opinion 99-5525, Cited in: http://www.law.cornell.edu/supct/html/99-5525.ZO.html
5. What is meant by the "right to notice" with respect to administrative hearings?
"Right to Notice" is a legal statute designed to ensure that the party being accused of something has adequate time to prepare a defense, be notified of procedure, or otherwise warned that a hearing or court date is set. Unless this right is waived in the workplace, any administrative hearing or high level disciplinary procedure, the employee has the right to counsel, and adequate time to prepare. Times vary per state, usually 10-30 days depending on the type of issue at hand.
1. Sources: www.lawyers.com; "Due Process of Law," Cited in: http://www.cs.state.ny.us/pio/hearingofficermanual/chapter03-dueprocess.htm
Unit 3 Questions
2. Before agency rulemaking can occur, certain procedures must be followed according to the APA of 1946. List and explain those procedures.
The Administrative Procedure Act of 1946 governs the process that federal administrative agencies must follow. It applies to all federal agencies except for those that are expressly exempted, and was enacted because, after the numerous agencies created during the Roosevelt Administration, Congress found that often laws created administrative agencies but failed to distinguish between the legislative and executive functions of those agencies. Procedures following must be in line with Subchapter 11, 551-559, and the amended nature of the Freed of Information Act (1996). They are Open information available to the public about rule in consideration, impact statement, open meetings, adjudication, hearing procedures, determinations of licenses, and effects upon other laws and subsequent statutes.
3. Sources: Administrative Procedure Act of (1946); Federal Administrative Procedure Act, Cited in: http://biotech.law.lsu.edu/Courses/study_aids/adlaw/
4. Distinguish among the following three terms: procedural rules, interpretive rules, and substantive rules. Explain the meaning and use of each.
a. Procedural Rules are rules that govern how prosecutions are conducted. The rules, which may be Federal or State, and may also govern different types of legal proceeding, e.g. criminal, are designed as a guide or template for the manner in which the Court proceeds on a given matter -- what it hears, what happens, and in what manner are issues resolved. The rules are designed to protect due process and ensure a fair and consistent application across the board. Essentially, Procedural Rules outline a "means" of conducting a court action. Creation of law.
b. Interpretive Rules -- Used in various ways depending on Federal, State, or local, they are the Court's view of the specific rule and the interpretation of its meaning. Known sometimes as the "legal effect" test, sometimes interpretive rules suggest or even engender new law. At times, law is so complex in specific cases or events, that a greater "interpretation" of the intent
Briefings on Administrative Law
In 1994, the initial state law that gave physicians the authority to prescribe lethal amounts of controlled substances to terminally ill patients was established by Oregon. However, in 2001 the Attorney General Ashcroft affirmed that the physician-steered suicide dishonored the Controlled Substances Act enacted in 1970. The Attorney General threatened to revoke all the medical physician licenses of those who took part in the practice.