Module 5 Review Assignment

Posted on: 28th May 2023

Question

Module 5 Review Assignment

  1. The Equal Employment Opportunity Commission seeks data about the racial composition of Terrific Textiles’ labor force. Terrific refuses on the grounds that inadvertent disclosure of the numbers might cause certain “elements” to picket its factories. The EEOC takes Terrific to court to get the data. What is the result?
  2. In order to police the profession, the state legislature has just passed a law permitting the State Plumbers’ Association the power to hold hearings to determine whether a particular plumber has violated the plumbing code of ethics, written by the association. Sam, a plumber, objects to the convening of a hearing when he is accused by Roger, a fellow plumber, of acting unethically by soliciting business from Roger’s customers. Sam goes to court, seeking to enjoin the association’s disciplinary committee from holding the hearing. What is the result? How would you argue Sam’s case? The association’s case?
  3. Assume that the new president of the United States was elected overwhelmingly by pledging in his campaign to “do away with bureaucrats who interfere in your lives.” The day he takes the oath of office he determines to carry out his pledge. Discuss which of the following courses he may lawfully follow: (a) Fire all incumbent commissioners of federal agencies in order to install new appointees. (b) Demand that all pending regulations being considered by federal agencies be submitted to the White House for review and redrafting, if necessary. (c) Interview potential nominees for agency positions to determine whether their regulatory philosophy is consistent with his.
  4. Dewey owned a mine in Wisconsin. He refused to allow Department of Labor agents into the mine to conduct warrantless searches to determine whether previously found safety violations had been corrected. The Federal Mine Safety and Health Amendments Act of 1977 authorizes four warrantless inspections per year. Is the provision for warrantless inspections by this agency constitutional?Donovan v. Dewey, 452 US 594 (1981).
  5. In determining the licensing requirements for nuclear reactors, the Nuclear Regulatory Commission (NRC) adopted a zero-release assumption: that the permanent storage of certain nuclear waste would have no significant environmental impact and that potential storage leakages should not be a factor discussed in the appropriate environmental impact statement (EIS) required before permitting construction of a nuclear power plant. This assumption is based on the NRC’s belief that technology would be developed to isolate the wastes from the environment, and it was clear from the record that the NRC had “digested a massive material and disclosed all substantial risks” and had considered that the zero-release assumption was uncertain. There was a remote possibility of contamination by water leakage into the storage facility. An environmental NGO sued, asserting that the NRC had violated the regulations governing the EIS by arbitrarily and capriciously ignoring the potential contamination. The court of appeals agreed, and the power plant appealed. Had the NRC acted arbitrarily and capriciously?Baltimore Gas and Electric Co. v. Natural Resources Defense Council Inc., 462 US 87 (1983).
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Solution

Module 5 Law Review Assignment

Question 1

The EEOC wins the case. The court found that Terrific cannot be exempted from reporting its racial composition since it is a public company with publicly reported financial statements and therefore has a duty to disclose any relevant information.

The court went on to find that Terrific’s argument that disclosure of the racial composition would cause “elements” to picket its factories was not persuasive because those elements were incapable of picketing without the numbers being revealed. The court also held that although Terrific claimed that disclosure would cause employees to become upset, this was immaterial because the employees knew they were being asked for their race anyway and could easily leave if they did not want to disclose their race or ethnicity.

Question 2

The result is that Sam has no right to object to the association’s holding a hearing. The state legislature has placed plumbers under the control of an association, which can hold hearings and impose discipline. Sam wants to have his cake and eat it too: he wants to be able to use his own knowledge of ethics to determine whether he has violated the plumbing code of ethics, but he also wants to have the power to sue for damages if he is found guilty. But this cannot be done, because the legislature has given exclusive jurisdiction in disciplinary matters over plumbers who work for a contractor, who are employees rather than independent contractors (this is why there can be no lawsuit against them).

Sam is a member of the State Plumbers’ Association. He pays dues and receives benefits from this organization. He also benefits from its publications and training programs, which are available only to members of the association. If Sam is not subject to discipline by the association, then it would seem that there are no grounds for denying him access to these benefits in order to avoid being disciplined by his own organization.

Question 3

(a) The president may lawfully remove all incumbent commissioners of federal agencies in order to install new appointees. The reason he can lawfully do this is that they are political appointees who have been nominated by the president and confirmed by the Senate, which means they are not subject to civil service laws.  He may also conduct interviews with candidates for agency posts to see if their regulatory philosophies align with his own. In short, a president is free to carry out his campaign pledges regardless of what Congress or courts might say about them.

(b) The president does have the authority to demand that all pending regulations be reviewed by him and redrafted if necessary. The president has the power to issue executive orders, but those orders cannot conflict with existing law or regulations issued by other executive branch officials. If a regulation conflicts with existing law, then there is no choice but to repeal it rather than impose new laws on citizens in violation of their rights as guaranteed by the Constitution

(c) The president can lawfully fire all incumbent commissioners of federal agencies in order to install new appointees. For instance, if he wanted to fire everyone at the Environmental Protection Agency and replace them with people who would be more enthusiastic about deregulation, he could do so.If the president wants to establish a new regulatory philosophy at the EPA, however, he should not fire existing commissioners until they are replaced by new ones who share his views.

 Question 4

The Constitutionality of these provisions was addressed in Donovan v Dewey, 452 US 594 (1981). In that instance, Dewey was the owner of a mine in Wisconsin, and he refused to let Department of Labor inspectors search the mine without a warrant to see if previously discovered safety breaches had been fixed. Four warrantless inspections each year are permitted by the Federal Mine Safety and Health Amendments Act of 1977, but only three were carried out while Dewey worked at the mine because he objected to them.

Dewey claimed that his right against unreasonable search or seizure was violated by this provision since it allowed government agents without prior judicial approval to enter private property for purposes other than those

Question 5

The NRC did not act arbitrarily and capriciously. The record showed that the NRC did consider the possibility of water leakage into the storage facility, and it was clear that this possibility was remote. The court of appeals correctly held that, when considering whether to adopt an assumption, it is always appropriate to look at all substantial risks, even remote ones. The possibility of contamination by water leakage into the storage facility is not a significant risk for which there is no reasonable assurance; rather, it is a remote possibility for which there is no evidence or experience supporting a conclusion that such an occurrence would actually occur; as a result, even if one could make an airtight logical argument in support of the assertion that such an occurrence would actually occur, such argument would be unjustified in light of the fact that the possibility of contamination by water leakage into the storage facility is.

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