BLAW CH1

One discussion that is both legal and political is that of "positive rights." How do positive rights differ from negative rights? Hint: Research the "Second Bill of Rights."

A "positive" right requires that the government take action, while a "negative" right limits the power of government. (correct) Rationale: The U.S. Constitution provides in the Bill of Rights for several negative rights, which is "the right to be left alone" (and thus are referred to as "negative" rights): "The government is prohibited from...." Positive rights are argued among some as beyond and important to constitutional rights. President Franklin D. Roosevelt proposed these economic rights to include, for example, the "right to earn enough to provide adequate food and clothing and recreation."

In a civil law system, the laws are in flux, dependent upon court cases. Hint: Research the French Civil Code. TRUE OR FALSE

FALSE (correct) Rationale: A civil law system is one in which the rules of a society are codified (written into a code) in a systematic, comprehensive, and accessible way. Until changed, the laws remain fixed. Courts interpret but do not change the civil law.

The Supreme Court, head of the most important branch, is addressed in Article I of the U.S. Constitution. Hint: Research Article I of the U.S. Constitution. TRUE OR FALSE

FALSE (correct) Rationale: Congress is arguably the branch of government, as it is described first, in Article I, and has definite enumerated powers, or specific authorities granted under the Constitution. Article II addresses executive powers, and a short Article III addresses the Supreme Court.

Appellate courts will defer to trial court judges as to an issue of law. Hint: Research the rules of judicial construction in the text. TRUE OR FALSE

FALSE (correct) Rationale: Courts will generally defer to a jury for a finding of fact, such as "The defendant hit the plaintiff." Absent a showing of fraud or tampering, the jury's determination is nearly sacrosanct. Appellate (higher) courts do not defer to a lower court's determination of a finding of law, such as "The defendant's actions were allowed under the doctrine of self-defense."

The government of the United States is a direct democracy. Hint: Research the terms of political rule. TRUE OR FALSE

FALSE (correct) Rationale: The United States is not a pure (or "direct") democracy, which is control by a majority and which was seen as deeply dangerous. The United States may be defined as a constitutional republic, in which officials are elected to serve for designated terms. The terms are two years for the House of Representatives, to keep part of the legislature close to the people; four years for the President, and six years for the Senate, as the "deliberative" body. Note that Senators were initially appointed by legislators of each state (changed in 1913 by the 17th Amendment), and that Senate terms are staggered to further frustrate a democratic process that might run "too hot." The United States can also be referred to as a representative democracy, or a system in which the people control government through elected representatives.

Which of the following is true about regulatory law? Hint: Review "administrative law."

It is vast, authorized and overseen by the legislature and controlled by the executive branch. (correct) Rationale: Regulatory law is a vast realm of administrative law, authorized by the legislature and operated under the direct authority of the executive.

Administrative law is carried out through agencies, which are bureaucratic in structure. Which of the following is NOT part of the "rational model" of bureaucracy proposed by Max Weber? Hint: Research the "rational model" of bureaucracy by Max Weber.

Political decision-making. (correct) Rationale: Max Weber proposed a "rational model" of bureaucracy, following nine principles: Bureaucrats would have specialized roles. Recruitment is based on merit (e.g. tested through exampinations, qualifications, and open competition). An administrative system would develop uniform placement, promotion, and transfer. Careerism with systematic salary structure. Hierarchy, responsibility, and accountability. Official conduct subject to strict discipline and control. Supremacy of abstract rules (rather than personal opinion). Impersonal authority (i.e., the office does not belong to the office holder). Political neutrality. [e] is false, and thus is the correct answer, as bureaucracy is supposed to be politically neutral, and not to engage in politically-based decisions.

Under the jurisprudence of legal positivism, a society's written law is law even if it is immoral or unfair. Hint: If one exceeds a speed limit while others are traveling even faster, is there a violation of the law? TRUE OR FALSE

TRUE (correct) Rationale: Under the jurisprudence of legal positivism, "the law" is whatever the recognized legal authority lays down as the law: what is positively asserted as "the rule." Whether a rule is a good rule or a bad rule is an entirely different question. If it is a bad rule, it is up to society to change it to a good rule (or to a less-bad rule). If there is a disagreement as to whether or not it is a good rule (as there often is), that is up to the internal workings of the society to so decide.

In the U.S., state law may differ from federal law, as long as the laws do not conflict. Hint: Research the Supremacy Clause. -TRUE -FALSE

TRUE (correct) Rationale: Where state law conflicts with a federal law, under the Supremacy Clause of the U.S. Constitution, the federal law is supreme. In other words, the federal law supersedes the state law. Note, however, that it's possible for a state law to differ from a federal law, as long as the state law does not attempt to override the federal rule. For example, California might have more restrictive emissions regulations than are required under federal law; as long as federal law requires only a "floor" of regulation, states may impose higher restrictions (unless federal law "preempts" the states from doing so). Federal law is presumed to supplement rather than displace state law.

You are walking normally through the mall. Unbeknownst to you or to the mall owner, an elevator motor has begun leaking oil, dripping onto the ceiling of the elevator and then onto its floor. When riding the elevator, you step in the oil, and upon exiting the elevator, you slip on the sleek floor, breaking your hip. Under the common law, which of the following is true: Hint: What is "common law"? -You are likely in France. -The court will look to the code or cases involving criminal law. -The court will look to the opinions of other judges. -If the judge writes an opinion in your case, it cannot be used by litigants in future cases. -The case will be decided under either French or German legal rules.

The court will look to the opinions of other judges. (correct) Rationale: [c] is correct, because the common law is primarily based in case law developed over many centuries, and cases are the collected opinions of courts (i.e., judges).