BLAW 200 Chapter 1 Quiz

The terms (in years) of office for Representatives, Senators, Presidents, and Justices are: A) 2, 6, 4, lifetime B) 2, 2, 4, lifetime C) 2, 6, 8, 10 D) 4, 6, 4, 6 E) 2, 5, 8, 8

A) 2, 6, 4, lifetime Rationale: Members of the House of Representatives are elected for two-year terms. Senators are elected for six-year terms. Presidents are elected for four-year terms. They may serve a maximum of two full terms. Justices are nominated by the President and confirmed by the Senate for lifetime appointments (assuming "good behavior").

Under both the U.S. and English common law systems, which historical system provided relief in a case of extreme unfairness even if a legal rule did not: A) Ecclesiastical (or "Canon") Law B) Positive Law C) Courts of Equity D) Courts of Law E) Writ of Mandamus

C) Courts of Equity Rationale: A court of equity applies principles of equity based on Roman law, natural law, and broader notions of fairness. This was in many ways a "backstop" or last resort to avoid an injustice. In the U.S., these courts were merged, so a judge sitting in a "court of law" can issue equitable relief as well.

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: A) You are likely in France. B) The court will look to the code or cases involving criminal law. C) The court will look to the opinions of other judges. D) If the judge writes an opinion in your case, it cannot be used by litigants in future cases.

C) The court will look to the opinions of other judges. 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).

In regulation, the interests of the parties, including the government, are: A) in opposition in nearly all ways B) aligned in nearly all ways C) differing but with substantial overlap D) dependent upon Congressional approval E) irrelevant

C) differing but with substantial overlap Rationale: The regulatory process is extremely lengthy, with mandated periods for public comment following a protracted rule-making process, and followed by additional rule-making procedures and often back-and-forth negotiations. These generally follow technical rather than purely partisan mandates. Both sides (the agency and those being regulated, as well as those interested in the regulation) are usually staffed with technically proficient specialists who "speak the same language." The language they speak is that of the actual subject. If, for example, the Occupational Safety and Health Administration is considering new rules for the structure and materials used in trenching in construction sites, consider what is likely to be at issue. One might think the construction firms will say, "Bah, humbug! We don't want to spend money on this! Let's just dig a trench and fill it with cardboard. It'll be okay." For a host of reasons (which should be clear after reading this text), this is highly unlikely. Not least, such a construction company is likely to be bankrupted the first time a trench collapses, especially if there's an email with the above statement in it. A union might say "These rules should be far more strict! The company should have to build a complete structure and drop it in place before anyone goes in." If that structure is too expensive, the company will go bankrupt for a different reason, with the same result for employees. And what of the regulators? What are they saying? The answer to all of this is in the nature of who these individuals are. The regulators charged with making rules as to trench construction to prevent collapses are almost certain to be experts, either by experience in construction or by training, such as metallurgists and structural engineers. So who is on the other side? Answer: Exactly the same. What we then see is a system that is mostly technical, with groups of experts arguing about this-or-that specific technical question. Should 6-guage metal be used on these cross-supports, or is 8-guage sufficient? Should a new, lighter aluminum alloy be allowed to replace the heavier steel ones? Each side clearly has interests. That is to be expected. But the language and substance of what is being discussed is intensely technical, all in the interest of, in this case, workplace safety. Moreover, the head of the company's operations team is not interested in anti-safety: the desire is good safety at a reasonable cost. Regulators might push "good safety" more, and be less sensitive to cost, but both are speaking the same language. They are literally speaking metal, structural integrity, lateral test loads, safety tolerances, and so on. In fact, they are not only speaking the same language, they are often more culturally comfortable with each other than they are with different departments within their own organizations: metallurgists and structural engineers likely get along better with each other (even if on "different sides") than they do with the accountants in their own agency or company. Both want pretty much the same thing, and even when they don't, they understand where the divide is. This is less true with other areas of the law, where the other side is usually trying to deny you whatever it is you want.

One discussion that is both legal and political is that of "positive rights." How do positive rights differ from negative rights? A) A "positive" right is uplifting, while a "negative" right is depressing. B) A "positive" right limits the power of government, while a "negative" right requires that the government take action. C) Both "positive" and "negative" rights are guaranteed under the U.S. Constitution. D) A "positive" right requires that the government take action, while a "negative" right limits the power of government. E) Neither a "positive" nor a "negative" right is guaranteed under the U.S. Constitution.

D) A "positive" right requires that the government take action, while a "negative" right limits the power of government. 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."

Which of the following would be an approximate rank order of societies from most likely to follow the rule of law to least likely to follow the rule of law. In other words, rank the following societies from "most lawful" to "least lawful": A) United States, England, Sweden, Australia, New Zealand B) England, France, Germany, Brazil, Japan C) England, Brazil, India, New Zealand, Norway D) Finland, United States, Italy, Venezuela, North Korea E) Denmark, New Zealand, Canada, India, United States

D) Finland, United States, Italy, Venezuela, North Korea Rationale: One way to visualize "the rule of law" is to look to the degree of corruption in a society. The level of corruption in a society is a useful indication of an absence of the rule of law. In other words, where the rule of law exists, corruption is limited; where corruption exists, the rule of law is limited. Transparency International maintains a Corruption Perceptions Index, which is a useful tool to view approximate social institutions including the rule of law.

Which of the following is true about regulatory law? A) It is the sole responsibility of the legislature branch. B) It is the sole responsibility of the executive branch. C) It is handled by agencies under select legislative commissions. D) It is vast, authorized and overseen by the legislature and controlled by the executive branch. E) It is vast, authorized by the judicial branch and operated jointly by the executive and the legislative branches.

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

The law of modern Japan is: A) Imposed by the United States following World War II B) Borrowed from England C) Buddhist D) Confucian E) German

E) German Rationale: Japanese leaders, humiliated by their relative weakness against foreign powers, resolved to undertake the Meiji Restoration, to bring Japan to parity or better against any Western foe. Early Japanese law, derived from Chinese law, incorporated Confucianism from China, and Buddhism from India. These became a part of Japanese social and cultural norms. Japanese law was referred to as incomplete (relative to Western laws). While not entirely true, this was of course a highly sensitive issue. It was in this context that Japanese leaders sent Japanese jurists to the United States and Europe. Common law (of either the English or American varieties) was far too un-Japanese to be palatable. Continental European law was a better fit. As with other societies, Japan looked first to the French Code Civil as a model for its new laws. The Japanese experts who traveled abroad were acquainted not only with French law, but also with its Roman antecedents. Efforts to adapt the French code to Japan were extensive—but were halted when Japan discovered and explored the draft of the German civil code. The Bürgerliches Gesetzbuch was an even better match for the Japanese, and so the new Japanese Civil Code is based extensively on the German code. In short, Japanese law is to a large extent German law.

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? A) Bureaucrats have specialized roles. B) Recruitment on merit tested through examinations, qualifications, and open competition. C) Uniform placement, promotion, and transfer. D) Impersonal authority (i.e., the office does not belong to the office holder). E) Political decision-making.

E) Political decision-making. 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.

T/F: Appellate courts will defer to trial court judges as to an issue of law.

FALSE 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."

T/F: In a civil law system, the laws are in flux, dependent upon court cases.

FALSE 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.

T/F: The Supreme Court, head of the most important branch, is addressed in Article I of the U.S. Constitution.

FALSE 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.

T/F: The government of the United States is a direct democracy.

FALSE 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.

T/F: One way to measure how closely a society follows the rule of law is to look at the inverse of the level of corruption in that society.

TRUE Rationale:The level of corruption in a society is a useful indication of an absence of the rule of law. In other words, where the rule of law exists, corruption is limited; where corruption exists, the rule of law is limited.

T/F: Legislatures may override the common law.

TRUE Rationale:A common law rule—which is an accumulation of court decisions in cases—may be overridden by a statutory law (by a legislature), or by regulation (by an administrative agency).

T/F: Japanese law is to a large extent German law.

TRUE Rationale:During the Meiji Restoration in the latter half of the 1800s, Japan looked first to the French Code Civil as a model for its new laws. The Japanese experts who traveled abroad were extremely well acquainted not only with French law, but also with its Roman antecedents. Efforts to adapt the French code to Japan were extensive—but were halted when Japan discovered and explored the draft of the German civil code. The Bürgerliches Gesetzbuch was an even better match for the Japanese, and so the new Japanese Civil Code is based extensively on the German code. In short, Japanese law is to a large extent German law. Due to Japan's imperial role, German law then migrated to Taiwan and South Korea. Roman law has found its way to the farthest reaches of Asia through its German and French descendants.

T/F: Natural law refers to a moral realm that is separate from and above a society's specific laws.

TRUE Rationale:Natural law refers to a universal moral realm independent of and above individuals and societies. Natural law is said to be universal because it applies to all, regardless of time or place. If slavery is wrong, it is wrong at any time and in any place. Natural law thus stands against actual practice: slavery has been practiced throughout recorded history, in all parts of the world. Those who would object to slavery would refer to it as against natural law, even if it is "legal" within a society.

T/F: Stare decisis is the legal principle of precedent.

TRUE Rationale:Stare decisis is the principle of precedent, or following earlier cases. The essence of the common law is consistency, meaning that what was true yesterday should be true today, and remain true tomorrow. For this reason, courts are required to follow precedent from higher courts within their jurisdiction. So, a federal district court in Hawaii is required to follow precedent of the ninth circuit, of which Hawaii is a part. The judge in Hawaii may follow precedent from a different circuit, as this is "persuasive" but not "controlling" precedent. All federal courts must follow precedent of the U.S. Supreme Court.