Term
| Define an administrative agency; what it is and what it is not. |
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Definition
| Administrative Agencies is best defined by what its not: It is not a legislative or judicial body. It’s a statutory creation within the executive branch with the power to make, interpret, and enforce laws. |
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Term
| How are administrative agencies created? |
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Definition
| Congress creates federal agencies; state legislatures create state agencies; and the city governments create their cities’ administrative agencies. |
|
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Term
Do they exist at both the Federal and State levels?
and who creates them? |
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Definition
They exist at every level of government.
City government. |
|
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Term
| identify the three roles of administrative agencies |
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Definition
| Specialization, Due process, social goals. |
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Term
| In what particular area(s) are administrative agencies specialists? |
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Definition
| They are specialists in their particular areas of law. |
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Term
| Why is this specialization needed(administrative agencies specialists)? |
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Definition
| This type of specialization is needed because both the laws they enforce and the areas they regulate are complex. |
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Term
What do administrative agencies provide before property, rights, or income are taken?
(what is this a form of?) |
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Definition
They provide the opportunity to be heard, a form of due process before property, rights, or income are taken.
(due process) |
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Term
| What 1970 Supreme Court case created administrative agency procedures that provide timely due process? |
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Definition
| Goldberg v. Kelly, 397 U.S. 253 |
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Term
| What do some experts see administrative agencies accomplishing that might otherwise be delayed or debated? |
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Definition
Social goals.
IE: Environmental Protection Agencies goal is to create cleaner environment. |
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Term
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Definition
| Administrative Procedures Act: required agencies to follow certain uniform procedures in making rules (Freedom of Information Act). |
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Term
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Definition
| ). Federal Privacy Act: prohibits federal agencies from communicating any records to another agency or person without first obtaining that person’s consent (protects all records about individuals that the agency has, including medical and employment histories). |
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Term
| Government in the Sunshine Act: |
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Definition
| is often called open meeting law, this applies to only meetings between or among agency heads. |
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Term
| What is a FOIA request and what does it require administrative agencies to disclose? |
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Definition
| Freedom of Information Act: allows citizens access to certain agency information and requires that the agencies publicly disclose their procedures. |
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Term
| Which of these acts is often called the open meeting law? |
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Definition
| Government in the Sunshine Act. |
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Term
| To whom does the open meeting law apply and what two things does it require them to do? |
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Definition
| This applies to only meetings between or among agency heads. Meetings must be public and held only after there has been prior notice. |
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Term
| Who is exempt from the open meeting law requirement? |
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Definition
| Meetings on law investigations are exempt. |
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Term
| Which act is not part of the APA? |
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Definition
| The Federal Register Act. |
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Term
| What does the FRA oversee? |
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Definition
| Federal Register Act: which oversees publication of federal agency information. |
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Term
| What are the three functions of administrative agencies? |
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Definition
| Promulgating regulations, enforcing rules, and adjudication rules. |
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Term
| What are the two forms of administrative agencies’ legislative function? |
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Definition
| Formal rulemaking and informal rulemaking. |
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Term
| Is there a third form(administrative agencies’ legislative function) used by some agencies? If so, what is it? |
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Definition
| Hybrid rulemaking: a mix between formal and informal rulemaking. |
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Term
How do legislators begin the administrative process?
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Definition
| They begin by passing a law to remedy a problem. |
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Term
| What two concepts are given as the overview of such a enacted law? |
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Definition
| What legislature wants to accomplish and the penalties for its violations. |
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Term
| What power does the enacted law sometimes create in order to permit the administrative agency to enforce it? |
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Definition
| The law may also create an administrative agency with the power to adopt rules to enforce the statute. |
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Term
| What is an enabling act? How would the power an enabling act gives the agency be described? |
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Definition
| Gives the agency the broad power to deal with the issues the act was passed to address. |
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Term
| What must agencies establish for any new rules they propose? |
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Definition
| They must establish a purpose for any new rules proposed and present evidence that the regulation will accomplish the purpose. |
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Term
| Where do administrative agencies publish their proposed rules? |
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Definition
|
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Term
| What does the Regulatory Flexibility Act require? |
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Definition
| An agency is required under this act to publish a notice in trade and industry publications of those businesses that will be affected by the rule. |
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Term
| What is the public comment period? |
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Definition
| The time during which the agency accepts comments on the proposed rule. |
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Term
| Describe the public comment period in most cases. |
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Definition
| The public comment period cannot be fewer than 30 days, but most comment periods are much longer. |
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Term
What is one of the most important distinctions between the legislative process (such as that
conducted by Congress or State legislators) and the regulatory rulemaking process (such as conducted by administrative agencies)? |
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Definition
| The most important difference is the nature of the role; Legislators can accept campaign contributions and meals from lobbyist. However, those who work in administrative agencies fulfill both a Rulemaking and enforcement role and cannot except such gifts. |
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Term
| What three choices does an administrative agency have after the public comment period is over? |
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Definition
| 1) Adopt the rules. 2) Modify the proposed rules and go through the process of public comment again. 3) Withdraw the rule. |
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Term
| What different grounds do those who commented during the proposal stage have to challenge an administrative rule? What three grounds or theories exist for challenging proposed rules? |
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Definition
| 1) The first ground is to challenge the rule arbitrary, capricious, an abuse of discretion, or in violation of some other law. 2) A second theory for challenging an agency’s regulations is that the agency did not comply with the APA requirements of notice, publication, and public comment or input. 3) another bases for challenging a regulations is that the regulations is unconstitutional. |
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Term
| What does the Latin term ultra vires mean, both literally and as applied to the process of challenging agency rules and regulations in court? |
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Definition
| Ultra Vires is another theory for challenging a regulations in court. Latin term meaning “Beyond its powers.” An ultra vires regulation is one that goes beyond the authority given to the agency in its enabling act. |
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Term
| How does the process of formal rulemaking differ from informal rulemaking? |
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Definition
| Identify any similarities. Informal rulemaking is the same as that for formal rulemaking, with the exception that no public hearings are held on the rule. The only input from the public comes it’s the form of comments, using the same procedures. |
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Term
| What do many agencies issue as a way to enforce the law? |
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Definition
| Many agencies issue licenses o permits as a way to enforce the law. |
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Term
| Why does the power of inspection present a strong incentive to comply with agency regulations? |
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Definition
| Ie: such as when an agency responsible for restaurant licenses inspects restaurant facilities to check for health code violations. |
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Term
| What can happen if a business refuses an inspection? |
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Definition
| If they refuse the agency can obtain a warrants and return for mandatory inspection. |
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Term
| What begins the enforcement step? |
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Definition
| It begins when the agency issues a complaint against the violating party. |
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Term
| What does an agency complaint describe? |
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Definition
| It describes when and what the company did and why it’s a violation. |
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Term
| What two things can an agency do once the complaint is filed? |
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Definition
| An agency can negotiate with a party for an order or proceed to a hearing to obtain an order from an administrative law judge. |
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Term
|
Definition
| A court order that prohibits specifically described conducts. |
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Term
| Describe a consent decree. |
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Definition
| A document where some companies agree to penalties proposed by an agency rather the go through a hearing and the expense of the administrative process. Contract between the charged party and the regulatory agency. |
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Term
| Where do questions of violations and penalties go if the parties cannot come to an agreement? |
|
Definition
| An administrative hearing |
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Term
| Who would the defendant be in these circumstances? |
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Definition
| The defendant is the person or company accused of violating an administrative regulation. |
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Term
| What is the judicial officer who conducts the hearings for Federal agencies called? |
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Definition
| The judge is called the Administrative Law Judge at the federal level. |
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Term
| What do the initials ALJ stand for? |
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Definition
|
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Term
| What are the judicial officers who conduct the hearings at State agencies sometimes called? |
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Definition
| some state-level it is called hearing examiner or hearing officer. |
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Term
| Are administrative hearings limited to the agency and the party charged? |
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Definition
| Administrative hearings can have as participants more than just the agency and the party charged with a violation. |
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Term
| What do intervenors with regard to the case and what kind of motion must they file before the start of the hearing? |
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Definition
| Intervenors file motions to intervene and are usually permitted to do so at any time before the start of the hearing. |
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Term
| What is the first step in any appeal of an administrative law decision? |
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Definition
The first step in an appeal of an ALJ decision is not to a court but to an agency itself.
(parties dont usually go immediately to court) |
|
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Term
| What does this (not going immediately to court) give the agency the chance to do before the courts become involved? |
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Definition
| This step gives the agency a chance to correct a bed decision before the courts become involved. |
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Term
Describe the process known as exhausting administrative remedies.
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Definition
| Those appealing an ALJ decision must go through all the required lines of authority in the agency before they can go to court. This process is the EAR |
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Term
| As a general legal definition, what type of interference does a tort represent? A tort is some type in interference with someone’s or with someone’s property that results in injury |
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Definition
| A tort is some type in interference with someone’s or with someone’s property that results in injury |
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Term
| What is the Latin root for tort and what does it mean? “crooked, dubious, twisted.” |
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Definition
| “crooked, dubious, twisted.” |
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Term
| Compare and contrast torts versus crimes; thinking back to chapter 1, how would you classify each, as public or private? |
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Definition
| A crime is a public wrong that requires the wrongdoer to pay a debt to society through a fine or by going to prison. |
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Term
| Identify the three distinct types of torts and briefly describe each. |
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Definition
| Intentional torts are those that involve deliberate actions (hitting another person). Tort of negligence: careless conduct (hitting someone on accident). Strict tort liability: for out conduct that carries inherent dangers (misusing a product). |
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Term
| Provide a simple definition for defamation. |
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Definition
| Is an untrue statement made by one party to another about a third party. |
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Term
| Are slander and libel different or the same as defamation? |
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Definition
| Slander is oral or spoken defamation and a libel is a writing defamation. |
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Term
| Identify the five specific elements for defamation. |
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Definition
| 1) A statement about a person’s reputation, honesty, or integrity that is untrue. 2) Publication. 3) A statement that is directed at a particular person. 4) Damages. 5) in some cases, proof of malice. |
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Term
| Can defamation be about broad group of people or must it be more focused? |
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Definition
| It must e focused.(ie you cant say all accountants are scum bags, but you can say the people that work at blah blah inc are) |
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Term
| What is product disparagement? |
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Definition
| is defamation of a product. No being truthful about your product or abilities. |
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Term
| What did the U.S. Supreme Court hold in the case Bose Corporation v. Consumers Union of the United States? |
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Definition
| The US supreme court dealt with whether product disparagement of the Bose speaker system actually occurred when consumer reports described individual sounds from speakers, such as those of violins, as growing to gigantic proportions. |
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Term
| Describe how damages for defamation would be proven. |
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Definition
| Defamation requires proof of damages, such as lost business, lost profits, lost advertising, lost reputation, or some economic affect that has resulted from the defamatory statement. |
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Term
| When is proof of malice required? |
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Definition
| Defamation that involves public figures require proof of malice. |
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Term
| Define what is meant by a “public figure.” |
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Definition
| Those voluntarily in the public eye, such as elected officials, actors, sports stars. |
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Term
| What protections do the media enjoy with regards to public figures and what are these protections balanced against? |
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Definition
| Provides the balance between personal rights and first amendment protections for the media. |
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Term
| With regards to a defamation case, define when malice might be said to exist. |
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Definition
| Malice exists when the information was published or broadcast knowing the it was false or with reckless disregard for whether it was true or false. |
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Term
| Describe the three defenses to defamation. |
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Definition
| 1) Truth: a statement may be damaging but if it is the truth, its not defamation. 2) Opinion and Analysis: one current defamation issue is whether the statements made in a columnist’s opinion or analysis constitutes defamation. 3) Privileged Speech: Some speech is privileges; that is, the speech is protected from defamation claims regardless of whether it is true. |
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Term
| Could a case of product disparagement be defended using any of these three defenses(defenses to defamation=Truth, Opinion and Analysis, Privileged Speech)? |
|
Definition
|
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Term
| How would you classify the defense used in the aforementioned Bose Corporation v. Consumers Union of the United States? |
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Definition
| I think it falls under Opinion and Analysis. |
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Term
| Provide a basic definition for the tort of contract interference or tortuous interference with contracts. |
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Definition
| That someone intentionally persuades another to break a contract already in existence. |
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Term
| What question did the case In re Marshall involve? |
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Definition
| Whether Mr. Smiths fortune/estate would go to his son or Anna Nicole Smith. |
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Term
| Define false imprisonment. The detention of a person for any period of time against his or her will. |
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Definition
| The detention of a person for any period of time against his or her will. |
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Term
What is this tort (false imprisonment) often referred to as and why?
And does phyiscal harm have to occur for this Tort to occur? |
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Definition
“the shopkeeper’s tort” because it generally occurs as a result of shoplifting accusation in a store.
No. |
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Term
| What is the shopkeeper’s privilege? |
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Definition
| It allows a shopkeeper to detain a suspected shoplifter for a reasonable period of time while the matter or incident is investigated. |
|
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Term
| Why would shopkeepers need this defense? |
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Definition
| Because shopkeepers need the opportunity to investigate matters when someone is suspected of shoplifting. |
|
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Term
| Specifically identify what a “shopkeeper” would need in most states in order to prove this defense (shopkeepers privilege). |
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Definition
| He must have a reasonable basis for keeping the person. |
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Term
| What conduct does the intentional infliction of emotional distress impose a liability for? |
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Definition
| This tort imposes that liability for conduct that goes beyond all bounds of decency and results in emotional distress in the harmed individual. |
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Term
| In order to recover for the intentional infliction of emotional distress, what must the plaintiff prove? |
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Definition
| They are required to prove outrageous conduct and damages from the emotional distress. |
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Term
| Identify the three different torts that comprise invasion of privacy. |
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Definition
| 1)intrusion into the plaintiffs private affairs. 2) public disclosure of private facts such as when someone discloses that a CEO was once a meth user. 3) Appropriation of another’s name, likeness, or image for commercial advantage. |
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Term
| Is the public disclosure of private facts the same as defamation? |
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Definition
| No its more like an invasion of privacy. |
|
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Term
| What does the tort of unauthorized appropriation involve? |
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Definition
| Using someone’s image, name, or voice without his or hers permission. |
|
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Term
| Be able to list and identify the five elements of negligence |
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Definition
| 1) The Duty, 2)Breach of Duty, 3)Causation, 4)Proximate Cause 5) Damages. |
|
|
Term
| What does each of us have a duty to act like? |
|
Definition
| Need to act like an ordinary and reasonably prudent person in all circumstances. |
|
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Term
| In what circumstances does this duty(acting like an ordinary person) apply? |
|
Definition
|
|
Term
| Beyond this basic duty, identify and describe three other sources for defining duty under specific circumstances. |
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Definition
| Going under the speed limit in bad weather, running a red light, and malpractice. |
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Term
| What “qualified privilege” has been formed as law in a majority of States? |
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Definition
| It is designed to allow managers the freedom on candor in their discussions of former employees and their performances as long as those letters are done in good faith and are factually based. |
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Term
| What proof is required that a defendant breached a duty? |
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Definition
| It requires proof that the defendant fell short of the standard of care or breached that duty. |
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Term
| What is the term “standard of care” analogous to? |
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Definition
| Pichardo v. Big Diamond, Inc which focuses on the safety and the liability of businesses and property owners for injuries that result from the acts of third parties. |
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Term
| What does the element of causation require to be established? |
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Definition
| In negligence, an element that requires the plaintiff to show that the defendants lack of care caused the plaintiffs injury. |
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Term
| Identify and define the test that is often used to determine causation. |
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Definition
| The “but for” test: “but for the action of lack of action of the defendants, the plaintiff would not have been injured.” |
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Term
| What is the “zone of danger?” |
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Definition
| which required that the plaintiff be in the zone of danger when the injury occurs. |
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Term
| Review the case Palsgraf v. Long Island Ry. Co. (p. 191). |
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Definition
| Two men boarding a train and drop a package of fireworks. The fireworks go off and one of the men fall and injured Palsgraf. |
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Term
| Given the judicial opinion in that case, define what is meant by proximate cause. (refering to the train scenario) |
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Definition
| An element of negligence. |
|
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Term
| Describe five different types of damages that might result from a defendant’s negligence. |
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Definition
| Medical bills, lost wages, pain and suffering, as well as any property damages or punitive damages. |
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Term
| Be able to list and identify the three defenses to negligence |
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Definition
| Contributory Negligence, Comparative Negligence, and Assumption of risk. |
|
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Term
| What is the simple definition of contributory negligence? |
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Definition
| It is simply negligence by the plaintiff that is part of the cause of an accident. (the boat example) |
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Term
| What issue becomes complicated with contributory negligence? |
|
Definition
|
|
Term
Provide a descriptive example of the application of contributory negligence.
(what is the effective of this defense?) |
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Definition
Two drunk ppl on a boat. Ones driving and speeds up, the other ones dumb and falls in and gets injured.
(The effect is a complete bar to both from the recovery.) |
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Term
| Why have many states adopted comparative negligence as a defense? |
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Definition
| In order to eliminate the harsh effect of contributory negligence. |
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Term
| Describe what a jury determines under this defense and be able to provide a descriptive example. |
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Definition
| The jury simply determines the level of fault for both the plaintiff and the defendant and based on this assessment of fault, determines how much of the parties will be awarded. Back to the boat example, the jury could decided the boat owner had 75% fault and the passenger has 25%. |
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Term
| What does the defense of assumption of risk require the defendant to prove? |
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Definition
| A defense that requires the defendant to prove that the plaintiff knew there was a risk of injury in the conduct he or she undertook but decided to go forward with it anyways. |
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Term
| What two things must occur in order to assume the risk? |
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Definition
| To assume the risk, you must be completely aware of the risk and you must assume the risk voluntarily. (ie skiing equipment) |
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Term
|
Definition
| is absolute liability for conduct with few, if any, defenses available. |
|
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Term
| Identify and describe two circumstances that result in strict liability. |
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Definition
| Any violation of federal laws on disposal of biochemical waste would result in strict liability. Strict liability can also result because of public policy issues. |
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Term
| How have companies responded to the application of strict tort product liability to their defective products? |
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Definition
| Public Policy has afforded companies with few defenses to the strict liability for defective products so that they are careful in the design, production, and packaging of their products. |
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Term
Federal government and what article of the U.S. Constitution establishes or creates it.
Article I |
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Definition
| Article I: establishes the legislative branch including the two houses of congress, the house of representatives, and the senate along with the posers they hold and the methods for electing members. |
|
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Term
Identify each branch of the Federal government and what article of the U.S. Constitution establishes or creates it.
Article II |
|
Definition
| Article II: establishes the executive branch of the federal government, specifying the qualifications, manner election, term, and powers of the president |
|
|
Term
Identify each branch of the Federal government and what article of the U.S. Constitution establishes or creates it
Article III |
|
Definition
| Article III: establishes the Judicial Branch. It actually creates only the US Supreme Court and establishes its jurisdiction, but it authorizes congress to establish inferior courts which it has been done in district courts, specialized federal courts, and US courts of appeals. |
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Term
| What does it mean to have a government of separation of powers? |
|
Definition
| Found in the first three articles. Each branch of government has unique functions that the other branches cannot perform, but each branch also has powers that can curb overstepping by the other branches. (IE: the judicial branch cannot pass laws but it can prevent a law passed by congress.) |
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Term
| What is the system of different powers used to curb other branches’ exercise of power called? |
|
Definition
|
|
Term
| Why did the drafters of the U.S. Constitution design the Federal government this way? |
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Definition
| They formed it this way to avoid the accumulation of too much power in any one branch of government. (ie: “even the sovereign is subject to God and the Law”) |
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Term
| Briefly, what do Articles IV through VII deal with? |
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Definition
| Article IV deals with states interrelationships. Article V provides the procedures for constitutional amendments. Article VI is the Supremacy Clause and Article VII simply provides the method for state ratification of the US constitution. |
|
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Term
| Review The Bill of Rights (p. 88). How many amendments are there to the U.S. Constitution? |
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Definition
| The first ten of twenty-seven amendments are in the Bill of Rights. |
|
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Term
| Originally, did the Bill of Rights apply to the individual States, or just to the Federal government? |
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Definition
| They originally applied only to federal procedures; the 14th extended them to apply to the state as well. |
|
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Term
| What, if anything, changed this(the Bill of Rights apply to the individual States, or just to the Federal government)? |
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Definition
| The 14th amendment extended them to apply to the state as well. |
|
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Term
| Where is the Commerce Clause found? |
|
Definition
| It is found in Article I, Section 8, Part 3 of the US constitution. |
|
|
Term
| What power does it (commerce clause) provide Congress? |
|
Definition
| It provides Congress with the power to regulate commerce with foreign nations, among the several states. |
|
|
Term
| Does the clause (commerce clause) limit Congress in any way? |
|
Definition
| The clause limits Congress to the regulation of interstate commerce. |
|
|
Term
| What, if anything, is left to the States to regulate? |
|
Definition
| Local commerce and interstate commerce is left to the states for regulation. |
|
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Term
| What two perspectives are the standard for the courts’ task of defining interstate commerce? |
|
Definition
| Federal regulation of state and local commerce, and state and local regulations of interstate commerce. |
|
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Term
| Initially, how did the U.S. Supreme Court interpret the scope of the Commerce Clause? |
|
Definition
| The US Supreme Court initially gave a very narrow interpretation to the scope of the commerce clause. |
|
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Term
| Under this interpretation, what effect on interstate commerce did there have to be in order for an activity to be subject to Federal regulation? |
|
Definition
| There has to be a “direct and immediate effect” on interstate commerce. |
|
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Term
| What did the 1918 case Hammer v. Dagenhart rule? |
|
Definition
| The court ruled that manufacturing was not “commerce” and struck down an act of Congress that attempted to regulate goods manufactured in plants using child labor. |
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Term
| Who “bumped heads” with the Court several times during the 1930s? |
|
Definition
| Congress and President Roosevelt bumped heads with the court. |
|
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Term
| What did the Court consistently refuse to validate in 1935 and 1936? |
|
Definition
| Federal legislation of manufacturing, operations, and labor. |
|
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Term
| Identify two cases associated with this refusal. (Federal legislation of manufacturing, operations, and labor.) |
|
Definition
| Schechter Poultry vs. United States, 295 US 495 (1935); Carter vs. Carter Coil, 298 US 238 (1936). |
|
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Term
| What is the court-packing plan, and who initiated it and why? |
|
Definition
| Roosevelt refused to accept te roadblock to his legislation and initiated his Court-Packing Plan to increase the number of members of the court with Roosevelt appointees. |
|
|
Term
| How did the Court respond in 1940? |
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Definition
| The court ruled that intrastate activities, even though local character, may still affect interstate commerce and thus be subject to federal regulation. |
|
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Term
| Using the Court’s own words, describe the “affectation” doctrine. |
|
Definition
| “if it is interstate commerce that feels the pinch, it does not matter how local the squeeze.” |
|
|
Term
| In what has the Commerce Clause had a critical role? |
|
Definition
| The commerce clause has had a critical role in elimination of discrimination. |
|
|
Term
| What has the Court’s liberal definition of interstate commerce permitted? |
|
Definition
| The Courts liberal definition of what constitutes interstate commerce has permitted the application of federal civil rights law to local activity. |
|
|
Term
| What recent case refines limits on Federal authority and when was it decided? |
|
Definition
| US v. Morrison (case 4.1) it was decided in 2000. |
|
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Term
| Beyond issues of Federal power, what else does interpretation of the Commerce Clause involve? |
|
Definition
| The interpretation of the clause involves how much commerce the states can regulate without interfering in the congressional domain of interstate commerce. |
|
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Term
| What two factors are the courts concerned with in order to State regulations interfere with Congressional domain of interstate commerce? |
|
Definition
| 1) Whether federal regulations supersedes state involvement and 2) whether the benefits achieved by the regulation outweigh the burden on interstate commerce. |
|
|
Term
What are these factors meant to prevent?
(courts concerned with in order to State regulations interfere with Congressional domain of interstate commerce) |
|
Definition
| These two factors are meant to prevent states from passing laws that would give local industries and businesses a unfair advantage over interstate businesses. |
|
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Term
| What is the States’ police power? |
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Definition
| The states power to pass law that promote the public welfare and protect public health and safety. |
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Term
| What, inevitably, will burden interstate commerce? |
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Definition
| It is inevitable that some of the laws dealing with public welfare and health and safety will burden interstate commerce. |
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Term
| What have many State statutes that have been constitutionally challenged attempted to regulate? |
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Definition
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Term
| Identify two cases, the years they were decided, and the respective issues that were analyzed by the Supreme Court. |
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Definition
| Raymond Motor Transportation v. Rice (1978) this case tested a states power to regulate the length of trucks on sate highways. Another example would be Bibb v. Navajo Freight Lines, Inc (1959)which analyzed all Illinois statute requiring all trucks using Illinois roads to be equipped with contour mudguards. |
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Term
| What question, given The Balancing Test, must the courts answer in constitutional cases involving interstate commerce? |
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Definition
| The question courts must answer in these constitutional cases is whether the state interest in public health, welfare, or safety outweighs the federal interest in preventing interstate commerce from being unduly burdened. |
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Term
| What 1824 case defined foreign commerce and how did it define it? |
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Definition
| Gibbons v. Ogden, it defined is as foreign commerce as any “ commercial intercourse between the United States and foreign nations |
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Term
| Is Congressional regulation of foreign commerce restricted by intrastate standards or limited by the place of transaction? |
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Definition
| The power to regulate applies regardless of where the activity originates and where it ends. The foreign commerce power is not restricted by intrastate standards. If there in no foreign commerce, there can be congressional regulations regardless of the place of transaction. |
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Term
| What do Article I, Section 8, Paragraph 1 and the Sixteenth Amendment of the U.S. Constitution give Congress the power to do? |
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Definition
| It gives congress its power of taxation. “The Congress shall have power to lay and collect Taxes, Duties, Imposts and Excises…” The 16th Amendment gives this power; “The Congress shall have the power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.” |
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Term
| What four standards must State and local taxes on interstate business meet? Describe each of them. |
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Definition
1) The tax cannot discriminate against interstate commerce. A tax on milk could not be higher for milk that in shipping in from out side the state than for milk produced within the state.
2) The tax cannot unduly burden interstate commerce. A tax on interstate transportation companies that is based on the weight of their trucks as measured upon entering and leaving the states would be a burdensome tax.
3) There must be some connection “a sufficient nexus” between the state and the business being taxed. The business must have some activity in the state, such as offices, sales representatives, catalog purchases, or distribution systems.
4) The tax must be apportioned fairly. The standard seeks to avoid having businesses taxed in all 50 states for their property. |
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Term
| What part of the U.S. Constitution governs conflicts between State and Federal laws and is sometimes called the Supremacy Clause? |
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Definition
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Term
| What does the Clause provide when State and local laws conflict with Federal statutes, regulations, executive orders, or treaties(which is, incidentally, known as the doctrine of preemption)? |
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Definition
| The federal statute, regulations, executive order, or treaty controls the state or local law. |
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Term
| What do most Congressional statutes not include regarding preemption? |
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Definition
| Congressional statutes do not include the congressional intent on preemption. |
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Term
| How is the question of preemption determined? |
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Definition
Is it determined on a case by case basis using the following questions:
1)What does the legislative history indicate?
2)How detailed is the federal regulation of the area?
3)What benefits exist from having federal regulation of the area?
4)How much does a state law conflict with federal law? Is there any way that the two laws can coexist? |
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Term
| Review and be able to recite the First Amendment (p. A-7). |
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Definition
| Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances |
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Term
| What is commercial speech? |
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Definition
| It is referred to as the speech of business, which is communication used to further the economic interests of the speaker. |
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Term
| What is clearly a form of commercial speech? |
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Definition
| Advertising is clearly a for of commercial speech. |
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Term
| Until the 1970s, what was virtually unlimited with regards to commercial speech? |
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Definition
| Traditional speech afforded protection under the first amendment. Government regulation was virtually unlimited. |
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Term
| What three factors are examined by the courts when weighing the benefits of commercial speech against government regulations? |
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Definition
1)is a substantial government interest furthered by restricting the commercial speech?
2) Does the restriction directly accomplish the government interest?
3) Is there any other way to accomplish the government interest? Can it be accomplished without regulation commercial speech? Are the restrictions no more extensive than necessary to serve that interest? |
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Term
| Describe the “Son of Sam law.” What State passed this law and why do you think it was passed? |
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Definition
| Son of Sam Law refers to a type of law designed to keep criminals from profiting from their crimes, often by selling their stories to publishers. Such laws often authorize the state to seize money earned from such a deal and use it to compensate the criminal's victims |
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Term
| Who brought suit on the basis that the law violated the First Amendment? |
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Definition
| Simon and Schuster brought suit maintaining that the so-called “Son of Sam law” violated the First Amendment. |
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Term
| Who did the U.S. Supreme Court agree with and what did the Court hold? |
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Definition
| The US Supreme Court agreed with Simon and Schuster and held hat the statute was overly broad. |
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Term
| What is corporate political speech and what three generalized forms does it take? |
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Definition
| It takes form in three generalized ways: 1) through financial support such as political candidate donations. 2) Through financial support such as a party donations. 3) Through direct communications and ads about issues, ballot propositions, and funding proposals (such as bond elections). |
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Term
| What has the Supreme Court noted in its opinions on the topic of political donations? |
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Definition
| “money is like water and it always finds its outlet,” and the donations and PAC activity became a concern. |
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Term
| What is FECA and what did Congress do with regards to it in 1972 and 1974? |
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Definition
| Congress passed the Federal Election Campaign Act, which limited individual donations to $2,300 per election cycle, with an overall annual limitation on donations to $25,000 by any contributor. |
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Term
| Was FECA challenged? When? |
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Definition
| Yes in 1976 by Buckley v. Valejo. |
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Term
| What did the U.S. Supreme Court do in the case Buckley v. Valejo? |
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Definition
| The Supreme Court ruled on their constitionality. The court struck down the expenditure limitations of the law but upheld the dollar donation limitation as being sufficiently narrowly tailored to address the corruption concerns w/out infringing on the speech elements of donation. |
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Term
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Definition
| contributions made with funds that are subject to the act’s disclosure requirements and source and amount limitations are called “Federal Dollars” aka “hard dollars.” |
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Term
| What are soft money donations? |
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Definition
| -or the unlimited donations to parties, think tanks, and other groups, became extensive. |
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Term
| What legislation did Congress pass in 2002? |
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Definition
| Congress passed the Bipartisan Campaign Reform Act of 2002. |
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Term
| What is this legislation often referred to as? |
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Definition
| Often referred to as McCain-Feingold law |
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Term
| What does it regulate? (McCain-Feingold law) |
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Definition
| It regulates the use of soft money by political parties, officeholders, and candidates. |
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Term
| What 2003 U.S. Supreme Court case concluded that soft money could be regulated? |
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Definition
| McConnell v. Federal Election Comm’n |
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Term
| By contrast, what 1978 U.S. Supreme Court case determined that corporations have the same First Amendment protection for political speech as individual human beings? |
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Definition
| First National Bank of Boston v. Bellotti |
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Term
| What is this doctrine commonly known as?(protects political speech) |
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Definition
| Commonly known as the Bellotti doctrine. |
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Term
| Review and be able to recite both the Fifth Amendment (p. A-7) |
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Definition
| No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation |
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Term
| the Fourteenth Amendment, Section 1 (p. A-8). Section 1. |
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Definition
| All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. |
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Term
| What is the right of eminent domain? |
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Definition
| The right of a governmental body to take title to property for a public use. |
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Term
| Where is this right (eminent domain) established? |
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Definition
| The right is established in the Fifth Amendment. |
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Term
| Given eminent domain, what can governmental entities do that private individuals cannot? |
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Definition
| Private individuals cannot require property owners the sell their property but governmental entities can require property over’s to transfer title for public projects for the public good |
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Term
| Name and describe the three factors that must be present for the right of eminent domain to be properly exercised. |
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Definition
1) Public purpose: such as the condemnation of slum housing, the limitations of mining and excavation within city limits.
2)Taking or Regulating: zoning restrictions on development.
3) Just Compensation: the party in which the land is being taken from must get compensation. |
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Term
| To exercise eminent domain, what must a governmental authority establish as a matter of necessity? |
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Definition
| They must establish that their taking is necessary for the accomplishment of a government or public purpose. |
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Term
| Regarding this necessity, what the U.S. Supreme Court determine in the 1946 case United States ex rel. TVA v. Welch? |
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Definition
| “the role of the judiciary in determining whether that power is being exercised for public purpose is an extremely narrow one” |
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Term
| Did the 2005 case Kelo v. City of New London change things? |
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Definition
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Term
| Describe the impact of this case( Kelo v. City of New London ). By the end of 2007 a number of States done in response? |
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Definition
| By the end of the case, 42 states has passed ballot propositions or legislation that limited the exercise of eminent domain, or restricted economic development justifications for eminent domain. |
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Term
Does mere regulation constitute a taking?
In order to constitute a taking, how far must it go? |
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Definition
| No. Rather, a taking must go so far as to deprive the landowner of any use of the property. |
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Term
| Name and summarize three cases where the U.S. Supreme Court determined that use of landowners’ property constituted takings, including the year each case was decided. |
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Definition
1) Loretto v. Teleprompter Manhattan CATV Corp (1982)
2) Nollan v. California Coastal Commission (1987)
3) Lucas v. South Carolina Coastal Council (1992) |
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Term
| What is meant by just compensation? The party whom the property is being taken be given just compensation. |
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Definition
| The party whom the property is being taken be given just compensation. |
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Term
What is just compensation always a question of?
Is this easy or difficult to determine? |
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Definition
Always a question of fact.
It is difficult to determine. |
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Term
| Why would “fair market value” be important when considering just compensation? |
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Definition
| The buyer needs to even or profit. |
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Term
| How did the 1943 case United States ex rel. TVA v. Powelson define fair market value? |
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Definition
| “what a willing buyer would pay in cash to a willing seller.” |
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Term
| What constitutional authorities require State and Federal governments required to provide citizens due process under law? . |
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Definition
| Both the fifth and the Fourth Amendments |
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Term
| What does the right to procedural due process require? |
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Definition
| It requires notice and the opportunity to be heard before rights or properties are taken away from an individual or business. |
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Term
| Name two familiar due process rights that exist in the criminal justice system. |
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Definition
| The right to a lawyer and the right to a trial. |
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Term
Is procedural due process a part of civil law as well?
Does the due process right apply to State and Federal agencies? |
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Definition
Yes.
The Due process right applies to both state and federal agencies. |
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Term
| If so, describe three actions taken by an agency where due process must be applied. |
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Definition
| Taking away a business license, suspending a license, and imposing fines for violations. |
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Term
Must due process be applied before an individual’s property is taken?
What three things comprise the concept of property? |
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Definition
Yes.
Property includes: land (as in the case of eminent domain), rights of possession (tenants and leases), and even intangible property rights. |
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Term
| For example, what would a student have a right to before being expelled? |
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Definition
| The right to be heard before the property. |
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Term
| What three things does substantive law consist of? |
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Definition
| Consists of rights, obligations, and behavior standards. (criminal laws are substantive law). |
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Term
| What 2007 case helps to define “void for vagueness” and how? |
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Definition
| Gonzales v. Carhart, the decision that dealt with a federal statute that prohibited partial birth abortions. |
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Term
| Describe how each of these frameworks is impacted by their countries’ historical, legal and religious circumstances. |
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Definition
| We tend to follow a pattern of establishing a general set of principles, as set forth in a constitution, and of reliance on custom, tradition, and precedent for the establishment of law in particular legal areas. System of law that is dependent on code law exists in France, Germany and Spain. 27 countries follow Islamic law in some way. |
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