Bus law chapter 2 practice problems
To a legal positivist, morality or rightness is an essential component of any valid law.
false
Proponents of natural law believe that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature
true
The largest source of new law is created by court decisions
Answer: F. The answer is false because Congress (through statutes) and/or administrative agencies (through rules and regulations) are probably the source of the most newly created law. However, remember that courts/ court decisions are/remain darn important because, for example, many times Congress or administrative agencies pass statutes/regulations that have gaps in them, terms that are ambiguous, etc., and they look to courts (via their written appellate decisions) to fill in these gaps, interpret vague and ambiguous statutes, etc.
Which of the following will defeat a federal administrative regulation in case of a clash between them? a. A state statute. b. A treaty. c. The common law. d. An equitable principle.
Answer: B [The answer is B because a federal treaty is deemed to carry more weight/ is given a higher priority than a federal administrative agency regulation. And, remember that treaties can only be made/passed at the federal level.]
2. Statutory law is to legislative bodies as common law is to: a. England. b. precedent. c. judges. d. administrative regulations.
Answer: C
6. In case of a clash between them, which of the following will defeat a federal administrative regulation? a. A state statute b. A state constitutional provision. c. A federal statute. d. A common law rule. e. Two of the above
Answer: C [The answer is C because a federal statute is passed by congress and a administrative regulation is passed by an administrative agency. The former takes precedence over the latter if there is a conflict!!]
7. Which of the following is both civil and procedural? a. The law of negligence (which is a tort). b. A statute imposing a jail sentence for rape. c. The rules for presenting evidence at a trial. d. A statute imposing a fine for speeding.
Answer: C. Negligence is civil and also substantive law, not procedural
Administrative agencies are sometimes referred to as the fourth branch of government. Explain.
Answer: In reality, most business persons have much more contact with and need to be more aware of various administrative regulations that directly affect their business operations as opposed to general principles of law. Thus, a business that wishes to sell food at retail must comply with many, many regulations before it can open the business and to stay in business. Since Congress (and state, county, and municipal) agencies have grown so much over the years and have so much power over the daily operations of business, such agencies are sometimes called by some as our fourth branch of government.
What is meant by the term "stare decisis"?
Answer: It is a Latin term that means to "stand on decided cases" or "let the decision stand." The term refers to the practice of courts following precedent cases when deciding on current cases involving similar facts and legal principles.
A state statute held it is illegal to make any negative comments about public officials. The Register and Chronicle printed a negative news story about a local chief of police. The chief then sued. The Register and Chronicle argued that the statute conflicted with the United States Constitution. The chief of police argued that the conflict with the United States Constitution did not matter since the statute was in line with the state constitution. What do you think?
Answer: State Constitutions must not conflict with the principles of the United States Constitution. The Supremacy Clause holds that the U.S. Constitution is the supreme law of the land.
Sometimes it is said that statutory law really means little until it has been tested by the Courts. Explain.
Answer: Statutory law, also known as codified or black letter law, may be subject to various interpretations until it is finally brought before a court. The court will determine if the statute is constitutional (if the law is challenged on that ground) and will interpret its application relative to the fact situation presented. Once done, this creates precedent and gives the public, lawyers and other judges as to how the law has been interpreted by the court. Other courts may interpret the law slightly differently given different fact situations; however, via the process of judicial review the statute becomes binding relative to the way in which the courts have interpreted it.
Give an example of how English legal history is intertwined with our current American legal institutions
Answer: The Doctrine of Stare Decisis, the use of a jury system, the use of mediation, the concept of collective responsibility, land is unique, and knowing and attacking procedural law is just as important as knowing the substantive law.
The Civil Rights Act of 1964 made discrimination on the basis of race, sex, religion, and national origin illegal in employment practices. The Equal Opportunity Commission (EEOC) was created by Title VII of the Act. The role of the EEOC is a federal Agency that investigates claims of unlawful employment discrimination. If there is a finding of reasonable cause to believe the charge is true, the EEOC may negotiate a settlement on behalf of the injured party or may bring suit to stop the unlawful activity. How would you best describe these rules and regulations that govern the operations of the EEOC? What type of law is this?
Answer: The EEOC is a federal administrative agency created by Congress to investigate and if necessary litigate Title VII disputes. First the EEOC will conduct a preliminary investigation to determine if there is a probable cause of discrimination. If there is probable cause, then the EEOC will attempt to eliminate the unlawful practice through informal methods. If that doesn't work the EEOC has the authority from Congress to file suit in the appropriate federal court. The EEOC must investigate the claim first before the claimant can file a suit in federal court. These are administrative laws.
1. The Doctrine of Stare Decisis is very important to the common law and our American Legal System. Explain how and why the common law developed, and the importance of stare decisis to it.
Answer: The common law developed in England and as judges and lawyers began to record decisions, those prior cases set precedence for the cases that followed. The doctrine of stare decisis means "let the decision stand." It makes the law more predictable, more equitable, and economizes the legal process.
Ralph was running for mayor of Yourtown, USA. He was in the process of knocking on residential doors, asking homeowners if he could put his campaign signs in heir front yards. Ralph was arrested under a local city ordinance, which made it a crime to put political signs in the front yards of residential homeowners even with the homeowners' consent. Ralph claimed that the ordinance violated the U.S. Constitution's freedom of speech. The county attorney argued that the local ordinance did not qualify as a statute, and therefore did not have to conform to constitutional principles. Who is correct? Why or why not?
Answer: The term statute includes the ordinances and resolutions of the subdivisions of the state such as cities and counties. All forms of statutory law must conform to the United States Constitution. In this instance political speech is usually given a high degree of protection. However, if the city can justify its ordinance as something needed for the benefit of the general public, the statute may stand.
Larry, Curly, Moe, and Shep were stranded on a mountainside after their plane went down in a snowstorm. They had no means of radio communication and virtually no food or other supplies. After 18 days, Larry and Curly killed Shep, the weakest survivor. Larry, Curly, and Moe ate him. This allowed all three to survive until they were rescued. After the three were rescued, they were all charged with premeditated first-degree murder under the relevant state statute. Discuss the three schools of jurisprudence and how each would influence a finding of guilt or innocence for the three charged.
Answer: The three theories of jurisprudence are legal positivism, natural law, and legal realism. The legal positivism would say the law is the law. Therefore Larry and Curly are guilty and must pay the consequences of the state statute. If there is also a statute that makes one a principal of the crime even though he did not actually do the killing, then Moe could also be convicted. The natural law supporter would argue that in this instance the law is unjust and need not be obeyed because of the desperate circumstances of the men. The legal realists would argue that the case will be influenced by the judges' and jury's income, education, family background, race, religion, and other factors which they bring to the case.
In 1993, President Clinton lifted the so-called "gag rule" which forbid abortion counseling in federally funded family planning clinics. From what source did President Clinton derive this power?
Answer: This is an example of an executive order. An executive order is an order issued by a member of the executive branch of the government. This power is delegated by the legislative branch and is implied from the U.S. Constitution.
Peggy Lou filed a lawsuit against "We Fix 'Em Rite", an auto body shop, for the sloppy paint job it did on her 2000 BMW. Once the lawsuit was filed with the appropriate clerk of court, Peggy Lou personally dropped a copy of the lawsuit in the mail. "We Fix 'Em" says it never received notice of the lawsuit. Local court rules require that a lawsuit be served by an independent process server or by the sheriff's department. Is this an example of substantive law or procedural law? Explain the difference.
Answer: This is an example of procedural law. It is the law that establishes the process for conducting the lawsuit. In this instance, the rule specifying the method and manner of service of process is to make sure that the defendant does in fact have notice of the lawsuit. The sheriff's department or the process server would submit an affidavit to verify the defendant was given notice of the pending lawsuit.
The U.S. Supreme Court is about to decide yet another important abortion case. Three of the court's justices are preparing to decide the case in quite different ways. Justice Marvin Keen is carefully reading all the applicable precedents so that he can get the existing law right and apply it in this new case. Justice Emily Earnest is reading books on moral philosophy in order to make sure that her decision is ethically correct. Justice Sam Mellow is checking out the latest public opinion polls on the subject of abortion, so that his decision will be up-to-date and will give the people what they want. Which schools of jurisprudence are most clearly exemplified by the decision-making of Marvin, Emily, and Sam?
Because he seeks simply to discover existing law and apply it to the case before him, Marvin basically is a legal positivist judge. Because Emily is concerned with what is morally right, and because she wants to ensure that the law also has this quality, she exemplifies natural law thinking. Because Sam wants the law to follow prevailing values and interests, he exemplifies the wing of sociological jurisprudence which says that the law ought to follow prevailing feelings and demands, whether right or wrong. Note: for the exam, don't worry about the sociological jurisprudence school. I will only test on the schools discussed in your textbook and University Reader textbook.
If a statute is clearly worded and not subject to more than one interpretation, a court does not have the power to invalidate it.
F [If it's unconstitutional (meaning it violates the federal or a state constitution), then a court can still invalidate it/strike it down!]
Only the federal legislature can enact statutes
F [The answer is false because state legislatures can also enact statutes!]
Wilfred was hit by Sally, a neighbor, when he went to confront Sally about her car blocking the entrance to his driveway. Wilfred can sue Sally in criminal court.
F [The answer is false because this would also be a civil lawsuit for money damages. Also, only the state/government can bring a criminal action; not a private party, like Wilfred. Again, read the question closely!!]
Maryland Country was being sued by a former prisoner who claimed she was sexually harassed, assaulted and battered by the sheriff while being held in the county jail on a drunk and disorderly charge. This is a criminal law suit.
F [The answer is false because this would be a civil lawsuit for money damages. Read the question closely!!]
Because the U.S. Constitution says that the president only executes the laws, the President never makes laws.
False. For example, the president can make/issue executive orders which are a type/form of law.
1. Assume that since 1903, the following statute has existed in State X: "Any state government employee who makes personal use of state-owned paper or writing instruments, or of other similar state-owned supplies , shall be punished by having three fingers severed from each of his or her hands, and by being tarred and feathered and paraded in such condition down the main street of the town of his or her residence at 12:00 noon on the first Monday of the month following the state employee's conviction for such offense" In addition, assume that even though the legislature of State X has left the statute in the Official Statutes of State X instead of repealing it, police and prosecutors in State X have never enforced it against any state government employee. Examine this statute, the foregoing facts, and the issues they suggest from the perspectives of each of the three schools of jurisprudence described in the text and your University Reader textbook. For each school, briefly discuss: the general approach that school would likely take to the examination of this statute (including the thing or things about the statute that would be the most interesting, important, or worthy of careful attention); and how an adherent to that school would view the validity or invalidity of the statute, including whether there is a duty to obey it (if that school of jurisprudence would make such a judgment).
Legal Positivism: this school holds that law and morality are separate and distinct and that a law should be obeyed simply because it is the command of a recognized political authority. The extreme legal positivist would say that regardless of the objectionable or arguably immoral content of a law, it must be obeyed. Therefore, despite the content of the statute at issue here, an unwavering legal positivist would assert that the statute should be obeyed and enforced. Natural Law: This school holds that law and morality cannot be separated, that our positive law must be consistent with "higher" values, and that an unjust law is not valid law. The natural law adherent is likely to conclude that this statute is invalid and should not be obeyed. Although a problem with natural law is the question of whose notions of morality and values should be regarded as controlling, this statute's extreme punishments would probably be regarded as immoral or unjust by virtually any breed of natural law thinker. Legal Realism: This school focuses on the frequent disparity between "law on the books" (i.e., what the unrepealed statute says) and "law in action" (i.e., what the enforcing authorities do). The legal realist asserts that the real law is revealed by what the enforcing authority does or fails to do. Here, a realist would say that even though the statute technically remains alive because it has never been repealed, the statute really is a dead letter (perhaps meaning that there is not duty to obey it) because no one enforces it. However, Legal Realists did not develop any consistent theory about the obligation to obey positive law, so we can't say for sure what they'd conclude on this subject. As a practical matter, though, most judges who have been called legal realists would find a way to dodge this statute
Laura Landowner visits Fred Halfbright, an attorney, with a problem. "My neighbor is intentionally letting his geese run over my property," she says. "What can I do about it?" "Maybe you've got a suit for trespass to land," Fred replies, "but let me do some research." One week later, Fred tells Laura that there's nothing he can do. "The doctrine of stare decisis says that like cases should be decided alike," he says, "but I can't find a real precedent for your case. I've been able to find intentional trespass cases involving sheep, goats, and even chickens, but I can't find a goose case." Has Fred intelligently applied the doctrine of stare decisis? Why or why not?
No, Fred has not intelligently applied the doctrine of stare decisis. The tort of intentional trespass to land presumably exists to enable people to control conditions on the land they own (which should include a right to exclude intruders). If this is the relevant purpose, and there is a liability for trespassers by the various animals described earlier, why shouldn't there also be liability for trespassers by geese? In other words, Fred has made what lawyers call an artificial distinction: one without a point, purpose, or moral justification. In this context, what's the difference between intrusion by chickens and intrusion by geese? (None really.)
A treaty defeats an inconsistent state constitutional provision in case of clash between them.
T. It does so because of the Supremacy Clause in the U.S. Constitution.
In the early morning hours of June 7, Willie Pruitt and Daniel Lopez were in and around a Hy-Vee Food Store. While on the Hy-Vee premises, Pruitt displayed a knife and shoved a customer entering the store. At least one Hy-Vee employee, who was familiar with Pruitt and Lopez, spoke with them and determined they had been drinking and had weapons. Pruitt and Lopez left the Hy-Vee and went to the Kwik-Shop convenience store next door. It was there that Pruitt and Lopez got into a fight with Thomas Davis. Davis was pumping gas into his car at the Kwik-Shop when Pruitt approached him and the fight ensued. Lopez stabbed Davis in the back paralyzing him. Davis brought an action against Kwik-Shop and Hy-Vee alleging that each store had a duty to control Pruitt and Lopez and to protect him from harm. Is this lawsuit a civil or criminal lawsuit? What are the characteristics of each type?
This is a civil lawsuit in tort. The characteristics of a civil lawsuit include the following: --The lawsuit is to determine the duties between parties. --The source of tort law is generally common law . --Money damages are typically sought. A money judgment is paid by one party to the injured party. Criminal lawsuits: --The government prosecutes the lawsuit. --Incarceration and/or fines are possible outcomes. --The burden of proof is stricter; beyond a reasonable doubt. In a civil case, it is beyond a preponderance of the evidence.
1. The concept of stare decisis focuses most on: a. precedent. b. flexibility. c. legislative intent. d. change.
a
15. Civil law regulates: a. rights and duties between persons and businesses in our society. b. behavior so threatening that society outlaws it altogether. c. only public law. d. only substantive law.
a
All powers not granted to the federal government by the U.S. Constitution are: a. retained by the states b. retained by Congress c. retained by the President d. retained by federal administrative agencies
a
An administrative regulation: a. has the same legal effect as a statutory law created by Congress. b. is legally binding on the specific businesses targeted by the regulation but is not binding on non-specified individuals. c. has no legal effect until ratified by a court. d. can only be interpreted and enforced by the administrative agency that created the regulation.
a
If Henry David Thoreau's neighbor agreed that war was unjust but paid his taxes any ay because the law required him to pay the tax, then he would be applying the jurisprudence theory of: a. Legal Positivism b. Natural Law c. Legal Realism d. Common Law
a
Jane was mugged and raped by a man who was waiting by her car, which was parked in the university parking lot. The local police apprehended the mugger. The first trial was initiated by the District Attorney's office. Jane initiated the second lawsuit for money and damages. Classify each legal action. a. The first case was a criminal case. The second was a civil case. b. The first case was a civil case. The second was a criminal case. c. Both cases are criminal. d. Both cases are civil.a
a
1. Common law refers to: a. law that is the same or similar in all the states b. law that is made when judges decide cases and then follow those decisions in later cases c. law made by legislatures in the form of statutes d. the legal systems of European countries such as France, Germany, and Italy
b
8. This question lists some common statements about law. Which of those statements is most typical of natural law? a. "Justice is what the judge ate for breakfast." b. "An immoral law isn't really law." c. "The law has to keep us with the changing times." d. "You should obey the law because it's the law"
b
Congress enacted legislation in 1933 to regulate the securities industry and prohibit various forms of fraud with securities. The Securities Exchange Act of 1934 was passed a year later and in part created the Securities and Exchange commission as an independent regulatory entity whose function was to administer these acts, these rules and regulations are referred to as: a. statutes b. administrative laws c. executive orders d. common law
b
Henry David Thoreau felt that war was unjust and therefore refused to pay his taxes when the United States declared war on Mexico. Thoreau felt that there was a higher law than the law of the land. Which theory of jurisprudence was he applying? a. Legal positivism b. Natural law c. Legal Realism d. Common law
b
The notion of civil disobedience is founded on what principle? a. Legal Positivism b. Natural Law c. Legal Realism d. An individual should disobey the law when such disobedience will improve his/her own position in life.
b
Which of the following jurisprudential schools would be most likely to say that judge should just follow the law as it's written, and not worry about anything else? a. Natural law b. Legal positivism c. Legal realism
b
. The three branches of government in the United States are a. the executive, legislative, and administrative b. the executive, legislative, and statutory c. the executive, legislative, and judicial d. the executive, legislative, and international
c
1. Judge Dullard, an old family friend, is a trial judge in Indiana. He needs help in deciding Case A, which is now pending in his court. Because he knows that you are not yet failing your business law course (the quarter is far from over, however), he has called you for advice. Judge Dullard tells you: "I'm really in a quandary over Case A. There's an Indiana statute, passed in 1982, that directly addresses the specific issue in the case, but I've found several Indiana Supreme Court cases from the 1960's and 1970's. All of those apply a common law rule that is the opposite of the rule stated in the statute. I've thought this over carefully, and I'm convinced that the rule contained in the statute makes for horrendous public policy, and that the common law rule is better. Can I decide Case A according to the common law rule?" What should you tell the judge? a. That he is bound by the statute because where there is a conflict between different types of law, the more recent statement of the applicable rule controls. b. That he is free to apply the common law rule, in view of the judiciary's power to make and apply common law that is consistent with sound policy. c. That he is bound by the statute because statutes defeat inconsistent common law court made rules in case of a clash between them. d. That he must develop a new rule for Case A, because the conflicting common law and statutory rules cancel each other out.
c
16. Which of the following would be an example of a civil lawsuit? a. George is being prosecuted by the government for bank fraud. b. The government has initiated an action against Jeff for operating a motor vehicle under the influence of alcohol. c. Gretta hit Rita in the bar after getting a little too happy during happy hour. Rita is now suing for her injuries. d. None of the above are civil lawsuits.
c
The United States Constitution divided power between the federal and state governments, and then divided federal power among three branches of government. Which of the following best describes this situation? a. Generally, the state constitutions are supreme, because the states were here first. b. Any power not granted to the state governments is reserved to the federal government c. The Legislative branch of the government makes statutes. d. The administrative branch of the government is charged with enforcing the nation's laws.
c
The legislature of the state of AAA makes a law that makes it a crime to assist someone in committing suicide. This law is called a(n): a. executive order b. ordinance c. statute d. stare decisis
c
2. The school of jurisprudence known as Legal Realism: a. Views laws as a social ordering process that reflects current American society's dominant interests and values. b. Believes that unjust or immoral laws do not deserve to be regarded as law, and should not be enforced or obeyed. c. Would advocate obedience to any properly enacted law, regardless of whether that law is just or moral. d. Defines law as the behavior of those persons and institutions charged with enforcing and applying the law, rather that the law as it appears in written form.
d
3. The common law: a. Only can change or grow through an amendment by the legislature. b. Applies only in situations that are governed by statutes or other positive law. c. Prevails over a conflicting constitutional provision. d. Is judge-made law that controls if no other type of law applies.
d
Curtis filed a lawsuit against Ulhoff to repay $1,000 according to the terms of a promissory note. The trial ended before it began with the trial judge granting a motion for summary judgment (i.e., remember that this is a "safety valve" motion to dismiss the case so that it does not/ is not allowed to proceed a trial.) in favor of Curtis. Ulhoff has appealed and the Supreme Court of Iowa has "remanded" the case. This means: a. Curtis automatically wins because he won in the lower court. b. Ulhoff automatically wins because he lost in the lower court. c. Neither party wins because the case is being thrown out. d. We don't know who wins yet because the case is being returned to the trial court for additional consideration.
d
Last year, Tim intentionally ran over Harry's prize rose bushes. Judge Novack ruled that Tim must pay Harry the fair market value of the rose bushes. Today, in Judge Novack's court, Jan says that Kristi intentionally destroyed her new apple tree. Judge Novack decides that Jan must pay Kristi the fair market value of the apple tree. This decision is an example of: a. stare decisis and contract law b. statutory law and civil law c. public law and jurisprudence d. stare decisis and civil law
d
The President of the United States has been traveling the world, meeting with heads of foreign nations and has negotiated an agreement with regard to world environment policies. He is back in the U.S. and is asking the Senate to ratify the agreement. This is an example of: a. an executive order b. a statute, if Congress passed it c. an administrative law which will be administered by the EPA d. a treaty, if the Senate ratifies the agreement
d
The doctrine of stare decisis: a. is based on English common law tradition. b. literally means "let the decision stand" c. help makes the law predictable d. All of the above
d
8. A law that violates the United States Constitution: a. is valid if Congress approves it by a super majority vote. b. is valid if the president vetoes the United States Supreme Court's decision c. cannot be enforced by the states but could be enforced by Congress. d. cannot be enforced by any branch of state or federal government.
d- Because of the "supremacy clause" Because the U.S. Constitution takes in the constitution precedence over all other federal laws as well. (e.g. federal statues passed by congress; administrative rules and regulations passed by federal administrative agencies)
Lacy Peters is suing Jack Smith for the intentional tort of emotional distress. Last year a similar case in this same court defined the requirements of this typical lawsuit. The prior case will have no influence on Lacy's case.
f
The Doctrine of stare decisis, though vital to the creation of the common law when this country was settled, is not important to our modern, complex society.
f
The natural law philosopher assumes that people have created laws because there is no ideal state of being.
false
2. The government cannot be a party to a civil suit.
false: For example, you can sue the government for money damages
Mitchell v. Noring is a contract case decided in 1990. The Anderson v. Holmes case being decided today is similar. The Mitchell case is a precedent.
t
Most administrative agencies such as FCC, INS, IRS, and EPA were created by Congress to oversee the respective legislation created by Congress. In other words, for example, the IRS was created to regulate and administer the Federal Internal Revenue Code enacted by Congress.
t
Nazi war criminals, those convicted of crimes against humanity by the international tribunal of judges at Nuremberg, were convicted by applying the principles of natural law.
t
The legal rights you have termed substantive law and the way you go about enforcing these rights is referred to as procedural law.
t
1. Administrative agencies get the power to make law through a process called delegation
true
1. Law is a body of enforceable rules governing relationships among individuals and between individuals and their society.
true
3. A state homicide statute is both criminal and substantive
true
7. Today, our common law courts tend to take an instrumentalist attitude toward law, viewing it as a flexible tool for accomplishing various social purposes.
true
