BLAW Chapter 4
Terms in this set (63)
Common law is judge-made law. It is the sum total of all the cases decided by what?
What are the two most important goals of common law?
What does stare decisis mean?
Let the decision stand
When an employee suffers a serious injury on the job, the employer has a duty to assist the employee. True or false
What are the three areas of law in which common law still predominates?
agency law, tort law, and contract law
What is an advantage of predictability of common law?
it makes the law knowable, and allows people to plan accordingly
Once an appellate court has made a ruling, every state court in the country must follow the precedent. True or false
What are two major factors courts consider when deciding whether to follow a decision from an earlier case?
Similarity of facts, jurisdiction
Monica is walking down a busy sidewalk. To her dismay, a piano falls out of a nearby window and crushes a man standing five feet away from her. Which of the following are the two best reasons Monica could offer in support of her argument that she owes the man no duty?
The holding of Osterlind v. Hill, and The holding in Union Pacific Railway Co. v. Cappier
The the Tarasoff decision, what did the court emphasize?
therapists need only show a degree of skill, knowledge, and care generally exercised by members of their field
The court's ruling in Soldano v. O'Daniels is
a subtle change to a common law rule (don't need to actively aid, but cannot refuse access to a telephone)
Tylice tumbles down a flight of stairs and breaks both wrists. Jordan stands at the top of the stairs watching and then walks away. Under the case of Carey v. Davis, Tylice is most likely to be successful in a suit against Jordan if:
Jordan is her employer
T/F Only the Senate may propose a new statute, called a bill
T/F Each state has a legistlature, which passes statutes for that state and for the nation
T/F some congressional committees have more power and influence than others
In what way do "we the people" have control over statutes?
By electing the politicians who pass statutes
Congressional committees hold hearings to investigate what?
The need for new legislation
What is the order of steps a bill takes before it goes to the president?
1) Congressperson proposes a bill
2) Congressional committees hold hearings
3) Committee votes in favor of the bill
4) Full body approves the bill
5) Other house approves the bill
6) Conference committee resolves differences
7) Both houses pass the same version fo the bill
What happens once Congress passes a bill?
It is sent to the president to sign or veto
Congress is organized into what two houses?
House and Senate
If Congress disagrees with a judicial interpretation of a statue, what might the legistlators do?
Pass a new statue to modify or undo the court decision
What are three steps in a court's statutory interpretation?
Plain Meaning Rule, Public Policy, and Legislative History and Intent
Most new law is?
T/F States pass statutes that govern that state only
When legislators perceive that social changes have led to new criminal acts, they may?
Propose a new bill
Which of the following are the three types of power that administrative agencies use to do the work assigned to them?
Make rules, adjudicate, and investigate
Congress passes a statute making it illegal for amusement parks to capture young wild sea mammals for display. An administrative agency promulgates a rule forbidding amusement parks from separating sea mammals born at the park from their mothers for more than an hour until the baby is at least three years old. The agency rule is an example of
What two types of rules do agencies promulgate
legislative and interpretive
What does legislative rule mean?
Requires business or private citizens to act in a certain way (similar to statutes)
What does subpoena mean?
An order to appear at a particular time and place to provide evidence
What does promulgate mean?
To make a new rule/law
What does subpoena duces tecum mean?
Requires a person to produce certain documents or things
What does interpretive rule mean?
An explanation or clarification of what the law already requires
What were adminsitrative agencies created for?
What part of the government is so influential it is referred to as the 4th branch?
What are the three limits on the informaton any agency may seek during its investigation?
Privilege, burden, and relevance
T/F Most adjudications begin with a hearing before an administrative law judge and no jury
Why are the courts unable to take on the responsibilities of adminstrative agencies?
Because the role of the courts is to decide individual cases, not regulate industries
Adminsitrative agencies provide expertise and flexibility, but their power and influence is controversial because
agency members are not elected by people
T/F adminsitrative agenceis exist at both the federal, state, and local level
Which of the following are three tasks typically carried out by enabling legislation?
describing the problems that Congress believes need to be addressed by regulation, defining an agency's powers, and establishing an agency
What are the steps of formal rulemaking in agencies?
holds a public hearing before it promulgates rules. Opponents of the rule may cross-examine agency experts and may testify against the rule. When the agency makes a final decision about the rule, it must prepare a formal , written response to everything that occurred at the hearing.
Agencies require broad factual knowledge of the field they govern. To force disclosure , agencies sometimes use subpoenas and searches during their investigations .
T/F Agencies must always obtain a warrant before seizing evidence from a company
Which of the following are three reasons given by the Court in United States v. Biswell for permitting the agency's actions?
limited threats to the dealer's privacy, an urgent federal interest,a nd unannounced inspections are essential
Which of the following are three ways in which Congress influences administrative agencies?
approval power over presidential nominees to head agencies, ability to amend an agency's enabling legislation, and controlling the purse
T/F Courts often overturn an agency's interpretation of the law
Erica owns a waterfront home in South Carolina, and is interested to know what information South Carolina has about her property and her tax obligations. May Erica use the Freedom of Information Act (FOIA) to obtain this information?
No. FOIA may not be used to obtain information from state governments.
What are bystander obligations?
You don't have to assist someone unless you created the danger (England); Railway Co v. Cappier
Tarasoff v. Ucal
one person has no duty to control another's conduct unless in case (i.e. therapist)
requires bystanders to at least report danger (in 10 states)
Name three reasons why bills are proposed
1) new issue, new worry
2) unpopular judicial ruling
3) criminal law
Which committee examines the differences between House/Senate bills and reconciles?
What is the plain meaning rule?
Court will apply the ordinary meaning of the word
What is the legislative history and intent?
If unclear language, look at law's history
What is public policy (judicial?)
If unclear history, court will look at general public policies and prior decisions
Griggs v. Duke Power Co
Title VII of 1964 Civil Rights act requires that employment tests be job related
What is legislative rule?
agency makes areule that requires people/businesses to acta certain way
What is interprative rule?
Doesn't change the law, only the agency's interpretation of what the law already requires
What 2 kinds of rules can agencies make?
Legislative and Interpretive
Define informal rulemaking
First agency must allow for public comment on proposed rule before final publishing
to hold a formal hearing about an issue then decide it (occurs before an adminsitrative law judge); no jury, only judge
What are the limits on agency power
statutory (enabling legislation)
political, presidential influence, budget
judicial review for mishaps
informational (standard on review): courts defer to facts