Test 1

Question 1

Milton Friedman

Answer 1

The major functions of government are] to protect our freedom both from the enemies outside our gates and from our fellow-citizens: to preserve law and order, to enforce private contracts, [and] to foster competitive markets

To the free man, the country is the collection of individuals who compose it, not something over and above them

In a liberal society, freedom has nothing to say about what an individual does with his freedom. . . . [It leaves] the ethical problem for the individual to wrestle with

Question 2

Robert Nozick

Answer 2

There are only individual people, different individual people, with their own individual lives. Using one of these people for the benefit of others, uses him and benefits the others. Nothing more. . . . Individuals are inviolable and they may not be sacrificed or used for the achieving of other ends without their consent

Question 3

Aristotle

Answer 3

Any polis which is truly so called. . . must devote itself to the end of encouraging goodness. Otherwise, a political association sinks into a mere alliance. . . [and] becomes a mere covenant. . . instead of being, as it should be, a rule of life such as will make the members of a polis good and just

Question 4

Michael Sandel

Answer 4

The republican conception of freedom, unlike the liberal conception, requires a formative politics, a politics that cultivates in its citizens the qualities of character self-government requires

Question 5

Alexis de Tocqueville

Answer 5

Individualism is a reflective and peaceable sentiment that disposes each citizen to isolate himself from the mass of those like him and to withdraw to one side with his family and friends, so that after having thus created a little society for his own use, he willingly abandons society at large to itself

Question 6

Federalist 47

Answer 6

The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny” (Madison, Fed 47, Woll p. 42

Separation of Powers

Question 7

Federalist 48

Answer 7

It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others, in the administration of their respective powers” (Madison, Fed 48, Woll p. 43)

Advocating for checks and balances on each branch of government

Question 8

Types of Laws

Answer 8

Criminal

• felonies, misdemeanors, infractions

Civil

• contracts, torts, marriage and divorce

Where do laws come from?

• statutes and ordinances, constitutions
• Common Law derived from usage and customs
  
  • “Backdrop” for all laws
  • generally replaced by statutes and constitutions

Question 9

Anatomy of a Judicial Decision

Answer 9

• Procedural history/procedural posture
• facts
• issue
• rule
• reasoning, analysis, or discussion
• holding
• judgment
• separate opinion

Question 10

IRAC

Answer 10

• issue
• rule
• analysis
• conclusion

Question 11

What is Administrative Law

Answer 11

• Administrative law is the body of law (including constitutional provisions, court decisions, statutes, and administrative rules) that regulates the exercise of agency discretion and the interactions between the three branches of government and the public.

Question 12

Constitutional Context of AL

Answer 12

• Constitutional law frames many aspects of public administration
• separation of powers
• federalism
• individual rights & administrative encounters
• liability of administrators

Question 13

Separation of Powers

Answer 13

the Constitution grants joint custody of the bureau to the three branches

• Congress’ Role
  
  • No money shall be drawn from the Treasury, but in consequence of appropriations made by law
• Executive’s Role
  
  • Enumerated Powers
  • Delegated authority
  • Executive orders, proclamations, memoranda, and directives
• Court’s Role
  
  • vindication of individual rights
  • relaxation of standing requirements
  • Imposition of personal liability on public administrators

Question 14

Temporal Effects of Rulemaking

Answer 14

• Rules are usually prospective–they define future expectations

Question 15

Characteristics of Rules

Answer 15

• Legislative Rules
  
  • like statutes they have the force and effect of law
  • regulate conduct
  • impose performance standards
  • govern eligibility for licenses and benefits
• Procedural Rules
  
  • govern an agency’s internal organization and operations
• Interpretive Rules
  
  • establish an agency’s understanding of the terms of its statutory mandate
  • explain the basis for existing legal obligations

Question 16

Application of Rulemaking

Answer 16

• can govern a wide range of industries or activities or just a single process
• the more particular the application of rules, the more due process the subject is entitled to

Question 17

Rulemaking Processes

Answer 17

• Notice/Comment Rulemaking
  
  • Specific notice to interested parties or publication
  • provide interested parties with opportunity to participate
• Negotiated Rulemaking
  
  • face to face negotiation among interested parties
  • appropriate when only a limited number of identifiable interests will be affected by a rule

Question 18

Adjudication

Answer 18

• Evidentiary
  
  • hearing in which evidence is adduced and law applied in determining the rights and obligations of individuals, corps, and others

Question 19

Temporal Effect of Adjudication

Answer 19

• Retrospective
  
  • looking at how someone behaved in the past

Question 20

Legislative vs. Adjudicative Facts

Answer 20

• Legislative
  
  • works off Normative conclusions
    
    • how things ought to be
• Adjudicative
  
  • empirical

Question 21

Objectives of Adjudication

Answer 21

• achieve fundamental fairness
• adjudicate cases competently
• resolve conflicts efficiently
• promote organizational performance

Question 22

Criticisms

Answer 22

• information is hard to access
• inconsistency within agencies
• people don’t know they have done anything wrong until after the fact

Question 23

Why Adjudicate?

Answer 23

• Agency convenience
• Incrementalism
• Suitable for resolving conduct and application cases
• Equity and compassion
• Constitutional due process

Question 24

DC v. Heller

Answer 24

• Does the DC Code violate 2nd amendment?
• Yes

Question 25

Whitman v. American Trucking Associations

Answer 25

• Does section 109(b)(1) of the Clean Air Act unconstitutionally delegate legislative power to the Administrator of the Environmental Protection Agency? May the Administrator of the EPA consider the costs of implementation in setting national ambient air quality standards under section 109(b)(1)? Does the Court of Appeals have the jurisdiction to review the EPA’s interpretation of Part D of Title I of the CAA, with respect to implementing the revised ozone NAAQS?
• no, no, and yes

Question 26

J.W. Hampton v. US

Answer 26

• Did the Tariff Act’s delegation of commerce power to the Executive Branch violate the Separation of Powers principle?
• Held that within defined limits, could vest discretion in Executive officers to make public regulations and direct the details of statutory execution

Question 27

Wickard v. Filburn

Answer 27

• Is the amendment subjecting Filburn to acreage restriction in violation of the Constitution b/c Congress has no power to regulate activities local in nature?
• The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, “it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’”

Question 28

US . Lopez

Answer 28

• Is the 1990 Gun-Free School Zones Act, forbidding individuals from knowingly carrying a gun in a school zone, unconstitutional because it exceeds the power of Congress to legislate under the Commerce Clause?
• Yes, the possession of a gun at school is not an economic activity. The law is a criminal statute that has nothing to do with “commerce” or any sort of economic activity

Question 29

Bi-Metallic Co. v. Colorado

Answer 29

• Do all individuals have a constitutional right to be heard before a matter can be decided where all land owners are equally concerned and stand alike?
• Affirmed. No. “Where a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption. The Constitution does not require all public acts to be done in a town meeting or an assembly of the whole.”