or regulations, notices of meetings, and invitations to submit grant proposals. Such regulations and documents appear upon issuance in the Federal Register (Fed. Reg.), a daily government publication. Final regulations appearing in the Federal Register are eventually republished—without the agency's explanatory commentary, which sometimes accompanies the Federal Register version—in the Code of Federal Regulations (C.F.R.).
State administrative agencies have various ways of publicizing their rules and regulations, sometimes in government publications comparable to the Federal Register or the Code of Federal Regulations. Generally speaking, however, administrative rules and regulations can be harder to find and are less likely to be codified at the state level than at the federal level, but states have increasingly made these materials available online.
Besides promulgating rules and regulations (called “rule making”), administrative agencies often also have the authority to enforce their rules by applying them to particular parties and issuing decisions regarding these parties' compliance with the rules (called “adjudication”). The extent of an administrative agency's adjudicatory authority, as well as its rule-making powers, depends on the relevant statutes that establish and empower the agency. An agency's adjudicatory decisions must be consistent with its own rules and regulations and with any applicable statutory or constitutional provisions. Legal questions concerning the validity of an adjudicatory decision are usually reviewable in the courts. Examples of such decisions at the federal level include a National Labor Relations Board decision on an unfair labor practice charge or, in another area, a Department of Education decision on whether to terminate funds to a federal grantee for noncompliance with statutory or administrative requirements. Examples at the state level include the determination of a state human relations commission on a complaint charging violation of individual rights, or the decision of a state workers' compensation board in a case involving workers' compensation benefits. Administrative agencies may or may not officially publish compilations of their adjudicatory decisions.
1.4.2.4 State common law. Sometimes courts issue opinions that interpret neither a statute, nor an administrative rule or regulation, nor a constitutional provision. In breach of contract disputes, for instance, the applicable precedents are typically those the courts have created themselves. These decisions create what is called American common law. Common law, in short, is judge-made law rather than law that originates from constitutions or from legislatures or administrative agencies. Contract law (see, for example, Sections 4.2 and 7.1.3) is a critical component of this common law. Tort law (Sections 3.2 and 4.4.2) and agency law (Sections 3.1 and 3.3) are comparably important. Such common law is developed primarily by the state courts and thus varies somewhat from state to state.
1.4.2.5 Foreign and international law. In addition to all the U.S., or domestic, sources of law noted, the laws of other countries (foreign law) and international law have become increasingly important to postsecondary education. This source of law may come into play, for instance, when the institution sends faculty members or students on trips to other countries, or engages in business transactions with companies or institutions in other countries (see Section 12.2.1), or seeks to establish educational programs in other countries or to offer programs online. (For a discussion of potential liability for injuries that may arise in study abroad programs, see Section 3.2.2.4.)
Just as business is now global, so, in many respects, is higher education. For example, U.S. institutions of higher education are entering business partnerships with for-profit or nonprofit entities in other countries. If the institution enters into contracts with local suppliers, other educational institutions, or financial institutions, the law of the country in which the services are provided will very likely control unless the parties specify otherwise. Such partnerships may raise choice-of-law issues if a dispute arises. If the contract between the U.S. institution and its foreign business partner does not specify that the contract will be interpreted under U.S. law, the institution may find itself subject to litigation in another country, under the requirements of laws that may be very different from those in the United States.
If the institution operates an academic program in another country and hires local nationals or draws from an international mix of employees to manage the program, or to provide other services, the institution must comply with the employment and other relevant laws of that country (as well as, in many cases, U.S. employment law). Employment laws of other nations may differ in important respects from U.S. law. For example, some European countries sharply limit an employer's ability to use independent contractors, and terminating an employee may be far more complicated than in the United States. Pension and other social security taxes are higher in many nations than in the United States, and penalties for noncompliance may be substantial. Tax treaties between the United States and foreign nations may exempt some compensation paid to faculty, students, or others from taxation. Definitions of fellowships or scholarships may differ outside the borders of the United States, which could affect their taxability. There is no substitute for competent local counsel to ensure that the institution is complying with all requirements pertaining to employees.
1.4.3 Internal sources of law.
1.4.3.1 Institutional rules and regulations. The rules and regulations promulgated by individual institutions are also a source of postsecondary education law. These rules and regulations are subject to all the external sources of law listed in Section 1.4.2 and must be consistent with all the legal requirements of those sources that apply to the particular institution and to the subject matter of the internal rule or regulation. Courts may consider some institutional rules and regulations to be part of the faculty-institution contract or the student-institution contract (see Section 1.4.3.2), in which case these rules and regulations are enforceable by contract actions in the courts. Some rules and regulations of public institutions may also be legally enforceable as administrative regulations of a government agency (see Section 1.4.2.3). Even where such rules are not legally enforceable by courts or outside agencies, a postsecondary institution will likely want to follow and enforce them internally, to achieve fairness and consistency in its dealings with the campus community.
Institutions may establish adjudicatory bodies with authority to interpret and enforce institutional rules and regulations (see, for example, Section 9.1). When such decision-making bodies operate within the scope of their authority under institutional rules and regulations, their decisions also become part of the governing law in the institution; and courts may regard these decisions as part of the faculty-institution or student-institution contract, at least in the sense that they become part of the applicable custom and usage (see Section 1.4.3.3) in the institution.
1.4.3.2 Institutional contracts. Postsecondary institutions have contractual relationships of various kinds with faculties (see Section 5.2), staff (see
