What does it mean to bring legal actions "at law" and "in equity"
Action brought at law are to recover money damages. Action brought in equity are for other remedies, such as injunctions or specific performance
What is substantive and procedural law?
Substantive law defines people's right and liabilities. It's what we think of as "the law." Procedural law specifies how attornys file legal papers and how judges apply th substantive law.
Constitutions establish their governments forms (procedural law) and powers (substantive law) but limit those powers by guaraanteeng individual rights. What are the Fith Amendment and Fourteenth Amendments?
- The fifth amendment is the "due process clause." It prevents the federal government from depriving anyone of life, liberty, or property without due process of law.
- The fourteenth amendment is the equal protection clause. It provdes that no state shall deny any person equal protection of the law or deprive anyone of life, liberty or operty without due process.
Legislative Law Making: What are Statutes?
Statutes are writeen dictates of legislative bodies, which declare, command, or prohibit something.
What are conflict of laws priciples?
They determine which state's law apply when a case involves more than one state.
A case tried in any state (the forum state) is tried under that state's procedural law. Tort and contract cases are general tried under the laws of what states? How is this determined?
- Tort cases are generally tried under the substantive law of the state where the injury occurred.
- Contract cases are generally tried under the substantive law of the state of greatest contact between the parties to the contract, known as the cente of gravity test.
- Parties can avoid conflicts of law by including contractual language about which state's laws will apply in the event of a dispute.
Identify and define the three ADR (alternative dispute resolution techniques)
- 1. Arbitration - a binding resoluton is made under the rules of the American Arbitration Association (AAA).
- 2. Mediation - a third party (often an experienced trial attorney or a retired judge) seeks to end the conflict through compromise.
- 3. Negotiation - including private mini-trials and court-sponsored mock summary jury trials -- to help the parties resolve their conflict.
Admistrative agency rule-making procedure - types of agency rules are
- 1. Legislative rules - created by statutory delegaton and carry the force of law
- 2. Interpretative rules - interpret statues and provide guidance
- 3. Procedural rules - regulate interal agency procedures. These procedures are set by the Adminstration Procedure Act (APA) for federal agencies and The Model State Adminstrative Procdure Act (MSAPA) for state agencies.
What are the four steps in the agency rule-making procedure?
- 1. An agency publishes notice of intent to adopt a regulation in an official publication, such as the FEDERAL REGISTER (for federal agencies or the appropriate state publication.
- 2. The agency publishes the regulation's text and provdes an opportunity for public comment, iether in writing or at a public hearing run by a hearing examiner.
- 3. After reviewing comments, the agency
- a. adopts the rule as proposed
- b. modifies and adopts the rule,
- c. nullifies the proposed rule.
- 4. The agency pulishes the final rule.
What is the privacy act?
It applies to agency records with information about people that is accessed by an identifying number. The act allows an individula access to his own records (except CIA and law enforcement records) and prohibits disclosure without his permission.
What is the freedom of information act?
It provides access to agency informaton except classified security information, law enforcement investigation records, trade secrets, confidential commerial or financial information, and the records of financial institutions.
What does the McCarran-Ferguson Act do?
It allows the states to regulate the insurance industry and exempt it from federal antitrust laws to the extent that it is regulated by the states. Federal law does not directly regulate the insurance business.
Give three arguments in favor of federal regualtion of insurers.
- 1. Uniformity of regulaton - insurers doing business in more than one state would not have to comply with 50 sets of rules.
- 2. Efficiency - Insurers would deal with only one federal agency, instead of up to 50 state agencies and hence would have lower expenses.
- 3. Higher quality personnel - higher salaries and greater prestige would attract better-qualifies personnel at the federal level.
What are five arguments favoring state regulation of the insurance industry?
- 1. Greater responsiveness to local needs and local problems.
- 2. Uniformity of state laws - already largely exists through NAIC model laws and regulations
- 3. Greater opportunities for innovation. States are less bureaucratic.
- 4. Inertia - the strenths and weaknesses of state regulation are known.
- 5. Decentralization of power and stronger state rights are always good.
State insurance regulation is an adminstrative agency function arising from state statutes that give state depmartments of insurance (DOI) what?
The primary regulatory authority over insurers.
The state insurance commissioner supervises the state DOI. What are his duties?
Supervision insurer licensing, monitoring insurer solvency, reviewing insurer investments, approving policy forms, setting and / or approving rates, regulating marketing, operating guaranty funds, operating government-madated programs, reviewing annual reports, investigating complaints, promulgating regulations, and proposing legislation.