Agency

Agency in United States

Agency Definition

Definition of Agency based on the The Cyclopedic Law Dictionary : A relation between two or more persons, by which one party, usually called the agent or attorney, is authorized to do certain acts for, or in relation to the rights or property of, the other, who is denoininated the principal, constituent, or employer. Prof. Joel Parker, MSS. Lect. 1851.

Practical Information

The relationship that exists when one person authorizes another to act for him or her. The one granting the authority is the principal; the one authorized to act is the agent. For an agent to act, a third party, with whom the agent contracts, is necessary. An agency relationship is created when a person gives a power of attorney (in U.S. law) or a proxy (in U.S. law), and in other situations. An agency may be general the agent has broad powers to represent the principal; or the agency may be special. (Revised by Ann De Vries)

Agency in the Federal Budget Process

Meaning of Agency in the congressional and executive budget processes (GAO source): No one definition of this term has general, governmentwide applicability. “Agency” and related terms, like “executive agency” or “federal agency,” are defined in different ways in different laws and regulations. For example, the provisions of the Budget and Accounting Act of 1921 relating to the preparation of the President’s budget specifically define “agency” to include the District of Columbia government but exclude the legislative branch or the Supreme Court (31 U.S.C. § 1101).

In Foreign Immunities Act (FSIA)

Agency is deeply enmeshed with FSIA jurisdiction. Because jurisdiction over a foreign state generally requires an act by the state, the question of whether an exception to immunity applies will often turn on whether the conduct of an individual – for example, an official, employee or agent – is attributable to the sovereign. Since jurisdiction is the key legal issue in FSIA cases, the need for clear rules relating to agency is paramount.

The Fifth Circuit explained twenty-five years ago:

“The FSIA uses [the term] to determine whether an “agency” of the state may potentially qualify for foreign sovereign immunity itself under the FSIA. This is a completely different question from that which we must address here: whether or not the [entity] enjoyed an alter ego relationship with the [foreign sovereign] so that it could bind [the sovereign] to a contract. Although such an alter ego relationship may be described in terms of “agency,” it is a completely different inquiry than that which might be conducted under § 1603.”

The Ninth Circuit reaffirmed Gates when it strongly rejected OBB’s argument in Sachs:

“The plain text of the FSIA does not support OBB’s proposed framework for determining whether [the entity in question] is an agent of OBB. Section 1603(b) defines what type of entity can be considered a foreign state for purposes of claiming sovereign immunity. If an entity cannot show that it meets that definition then it is not entitled to sovereign immunity. Whether an entity meets the definition of an “agency or instrumentality of a foreign state” to claim immunity is a completely different question from whether the acts of an agent can be imputed to a foreign state for the purpose of applying the commercial-activity exception.”

Agency Issue in OBB v. Sachs

The term “agency or instrumentality” in section 1603 has nothing to do with attribution. Instead, section 1603’s definition of “agency or instrumentality” identifies which entities are entitled to the protections of the Foreign Sovereign Immunities Act. 28 U.S.C. § 1603.

Note: More about the “Agency or Instrumentality” Argument here.

The Supreme Court in Bancec set forth the agency relationship exceptions to the rule of limited corporate liability:

“In discussing the legal status of private corporations, courts in the United States and abroad have recognized that an incorporated entity . . . is not to be regarded as legally separate from its owners in all circumstances. Thus, where a corporate entity is so extensively controlled by its owner that a relationship of principal and agent is created, we have held that one may be held liable for the actions of the other. In addition, our cases have long recognized the broader equitable principle that the doctrine of corporate entity, recognized generally and for most purposes, will not be regarded when to do so would work fraud or injustice.”

Agency meaning

The agreement between a principal to grant a power to dispose his or her affairs to an agent. As a general rule, whatever a man do by himself, except in virtue of a delegated authority, he may do by an agent: qui facit per alium facit per se.

Agents are entitled to actions against third persons for torts committed against them in the course of their agency.

Agents are liable for their acts, both to their principals and to third persons.

The liabilities of agents to their principals arise from a violation of their duties and obligations to the principal, by exceeding their authority, by misconduct, or by any negligence or omission, or act by which the principal sustains a loss. Agents may become liable for damages and loss under a special contract, contrary to the general usages of trade. They may also become responsible when charging a del credere commission.

Agents become personally liable to third parties when they act outside the scope of their authority, when they do not disclose their agency, when they make themselves personally responsible, e.g. by contracting in their own name,

See: Rorton v. Doty, 57 ldaho 792, 69 P.2d 136, 39.

Bevollmächtigte

The German term for a person empowered as an agent is the Bevollmächtigte. A Bevollmächtigte holds a Mandat.

Agent / Mandataire

In French law, the concept of one empowered to transact business on behalf of another is also known as an agent. However an agent in France is not granted a power of agency. They French term for agency is mandat, and thus an agent is also a mandataire.

All-Or-Nothing Principle / Full compensation principle) | Alles oder nichts Prinzip / Grundsatz der Totalreparation Full compensation principle | Principe de réparation intégrale

Principle that where one has committed a tort that they shall be liable for all the damages therefrom, even where others are also liable. This principle also holds that where there is no negligence there is no liability whatsoever.

The logic of this principle is that the tort-feasors will have claims against each other. This general principle is however being riddled with so many exceptions as to be practically swallowed by them.

Agency and the U.S. Equal Employment Opportunity Commission

Military departments as defined in Section 102 of Title 5, U.S. Code and executive agencies as defined in Section 105 of Tile 5, U.S. Code, the United States Postal Service, the Postal Regulatory Commission, the Tennessee Valley Authority, those units of the legislative and judicial branches of the Federal government having positions in the competitive service, the National Oceanic and Atmosheric Administration Commissioned Corps, the Government Printing Office and the Smithsonian Institution (including those with employees and applicants for employment who are paid from non-appropriated funds).

Federal and State Agencies

The Administrative Procedure Act says that “agency” means “each authority of the government of the United States, whether or not it is within or subject to review by another agency.” 5 U.S.C. § 551(1) (2006). The definition goes on to exclude Congress, federal courts, the government of the District of Columbia, and some other entities. Elsewhere “federal agency” or “agency” is defined as “the President of the United States, or an executive department, independent board, establishment, bureau, agency, institution, commission, or separate office of the administrative branch of the Government of the United States but not the legislative or judicial branches of
the Government.” 44 U.S.C. § 1501 (2006) (chapter covering Federal Register and Code of Federal Regulations)

David E. Lewis & Jennifer L. Selin (in Admin. Conf. of the United States, Sourcebook of United States Executive Agencies 15 (2012)) wrote the following:

“Every list of agencies in government publications is different. For example, FOIA.gov lists
78 independent executive agencies and 174 components of the executive departments as
units that comply with the Freedom of Information Act requirements imposed on every
federal agency. This appears to be on the conservative end of the range of possible agency
definitions. The United States Government Manual lists 96 independent executive units and
220 components of the executive departments. An even more inclusive listing comes from
USA.gov, which lists 137 independent executive agencies and 268 units in the Cabinet.”

Agency in Foreign Legal Encyclopedias

Link Description
Agency Agency in the World Legal Encyclopedia.
Agency Agency in the European Legal Encyclopedia.
Agency Agency in the Asian Legal Encyclopedia.
Agency Agency in the UK Legal Encyclopedia.
Agency Agency in the Australian Legal Encyclopedia.

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See Also

Further Reading

  • Legislatures and the budget process: the myth of fiscal control (J Wehner, 2010)
  • Morrison, K. (1999). Agency, ontology, & analysis: R. Schafer’s hermeneutic conflict. Psychoanalysis and Contemporary Thought, 22, 203-220.

Further Reading (Articles)

 

  • Agencies Lag on Transparency, Report Says, The Washington Post; December 5, 2012; Hicks, Josh
  • Agencies as Litigation Gatekeepers, The Yale Law Journal; December 1, 2013; Engstrom, David Freeman
  • Agencies sue over caps on temp wages; New state law restricts rates for nursing-home substitutes.(NEWS), Star Tribune (Minneapolis, MN); August 24, 2001; Wolfe, Warren
  • Why Agencies Punish, William and Mary Law Review; January 1, 2012; Minzner, Max
  • Agencies., EFTA Bulletin (Switzerland); March 1, 2009
  • Agency Workers Regulations: Additional Costs., Mondaq Business Briefing; December 16, 2011; Loosemore, David

Agency: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Agency. This part provides references, in relation to Agency, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Agency by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Agency and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Agency or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Agency and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Agency. Finding these decisions can be challenging. In many cases, researchers about Agency should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Agency when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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