Shared Flashcard Set

Details

MGMT 271
exam 2
199
Management
Undergraduate 2
02/15/2010

Additional Management Flashcards

 


 

Cards

Term
Define an administrative agency; what it is and what it is not.
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.
Term
How are administrative agencies created?
Definition
Congress creates federal agencies; state legislatures create state agencies; and the city governments create their cities’ administrative agencies.
Term

Do they exist at both the Federal and State levels?

and who creates them?

Definition

They exist at every level of government.

City government.

Term
identify the three roles of administrative agencies
Definition
Specialization, Due process, social goals.
Term
In what particular area(s) are administrative agencies specialists?
Definition
They are specialists in their particular areas of law.
Term
Why is this specialization needed(administrative agencies specialists)?
Definition
This type of specialization is needed because both the laws they enforce and the areas they regulate are complex.
Term

What do administrative agencies provide before property, rights, or income are taken?

(what is this a form of?)

Definition

They provide the opportunity to be heard, a form of due process before property, rights, or income are taken.

(due process)

Term
What 1970 Supreme Court case created administrative agency procedures that provide timely due process?
Definition
Goldberg v. Kelly, 397 U.S. 253
Term
What do some experts see administrative agencies accomplishing that might otherwise be delayed or debated?
Definition

Social goals.

IE: Environmental Protection Agencies goal is to create cleaner environment.

Term
APA
Definition
Administrative Procedures Act: required agencies to follow certain uniform procedures in making rules (Freedom of Information Act).
Term
FPA
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).
Term
Government in the Sunshine Act:
Definition
is often called open meeting law, this applies to only meetings between or among agency heads.
Term
What is a FOIA request and what does it require administrative agencies to disclose?
Definition
Freedom of Information Act: allows citizens access to certain agency information and requires that the agencies publicly disclose their procedures.
Term
Which of these acts is often called the open meeting law?
Definition
Government in the Sunshine Act.
Term
To whom does the open meeting law apply and what two things does it require them to do?
Definition
This applies to only meetings between or among agency heads. Meetings must be public and held only after there has been prior notice.
Term
Who is exempt from the open meeting law requirement?
Definition
Meetings on law investigations are exempt.
Term
Which act is not part of the APA? 
Definition
The Federal Register Act.
Term
What does the FRA oversee?
Definition
Federal Register Act: which oversees publication of federal agency information.
Term
What are the three functions of administrative agencies?
Definition
Promulgating regulations, enforcing rules, and adjudication rules.
Term
What are the two forms of administrative agencies’ legislative function?
Definition
Formal rulemaking and informal rulemaking.
Term
Is there a third form(administrative agencies’ legislative function) used by some agencies? If so, what is it?
Definition
Hybrid rulemaking: a mix between formal and informal rulemaking.
Term

How do legislators begin the administrative process?

 

Definition
They begin by passing a law to remedy a problem.
Term
What two concepts are given as the overview of such a enacted law?
Definition
What legislature wants to accomplish and the penalties for its violations.
Term
What power does the enacted law sometimes create in order to permit the administrative agency to enforce it?
Definition
The law may also create an administrative agency with the power to adopt rules to enforce the statute.
Term
What is an enabling act? How would the power an enabling act gives the agency be described?
Definition
Gives the agency the broad power to deal with the issues the act was passed to address.
Term
What must agencies establish for any new rules they propose?
Definition
They must establish a purpose for any new rules proposed and present evidence that the regulation will accomplish the purpose.
Term
Where do administrative agencies publish their proposed rules?
Definition
In the Federal Register
Term
What does the Regulatory Flexibility Act require?
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.
Term
What is the public comment period?
Definition
The time during which the agency accepts comments on the proposed rule.
Term
Describe the public comment period in most cases.
Definition
The public comment period cannot be fewer than 30 days, but most comment periods are much longer.
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)?
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.
Term
What three choices does an administrative agency have after the public comment period is over?
Definition
1) Adopt the rules. 2) Modify the proposed rules and go through the process of public comment again. 3) Withdraw the rule.
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?
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.
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?
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.
Term
How does the process of formal rulemaking differ from informal rulemaking?
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.
Term
What do many agencies issue as a way to enforce the law?
Definition
Many agencies issue licenses o permits as a way to enforce the law.
Term
Why does the power of inspection present a strong incentive to comply with agency regulations?
Definition
Ie: such as when an agency responsible for restaurant licenses inspects restaurant facilities to check for health code violations.
Term
What can happen if a business refuses an inspection?
Definition
If they refuse the agency can obtain a warrants and return for mandatory inspection.
Term
What begins the enforcement step?
Definition
It begins when the agency issues a complaint against the violating party.
Term
What does an agency complaint describe? 
Definition
It describes when and what the company did and why it’s a violation.
Term
What two things can an agency do once the complaint is filed?
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.
Term
Describe an injunction.
Definition
A court order that prohibits specifically described conducts.
Term
Describe a consent decree.
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.
Term
Where do questions of violations and penalties go if the parties cannot come to an agreement?
Definition
An administrative hearing
Term
Who would the defendant be in these circumstances?
Definition
The defendant is the person or company accused of violating an administrative regulation.
Term
What is the judicial officer who conducts the hearings for Federal agencies called?
Definition
The judge is called the Administrative Law Judge at the federal level.
Term
What do the initials ALJ stand for?
Definition
Administrative Law Judge
Term
What are the judicial officers who conduct the hearings at State agencies sometimes called?
Definition
some state-level it is called hearing examiner or hearing officer.
Term
Are administrative hearings limited to the agency and the party charged?
Definition
Administrative hearings can have as participants more than just the agency and the party charged with a violation.
Term
What do intervenors with regard to the case and what kind of motion must they file before the start of the hearing?
Definition
Intervenors file motions to intervene and are usually permitted to do so at any time before the start of the hearing.
Term
What is the first step in any appeal of an administrative law decision?
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)

Term
What does this (not going immediately to court) give the agency the chance to do before the courts become involved? 
Definition
This step gives the agency a chance to correct a bed decision before the courts become involved.
Term
Describe the process known as exhausting administrative remedies.
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
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
Definition
A tort is some type in interference with someone’s or with someone’s property that results in injury
Term
What is the Latin root for tort and what does it mean? “crooked, dubious, twisted.”
Definition
“crooked, dubious, twisted.”
Term
Compare and contrast torts versus crimes; thinking back to chapter 1, how would you classify each, as public or private?
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.
Term
Identify the three distinct types of torts and briefly describe each.
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).
Term
Provide a simple definition for defamation.
Definition
Is an untrue statement made by one party to another about a third party.
Term
Are slander and libel different or the same as defamation?
Definition
Slander is oral or spoken defamation and a libel is a writing defamation.
Term
Identify the five specific elements for defamation. 
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.
Term
Can defamation be about broad group of people or must it be more focused?
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)
Term
What is product disparagement?
Definition
is defamation of a product. No being truthful about your product or abilities.
Term
What did the U.S. Supreme Court hold in the case Bose Corporation v. Consumers Union of the United States?
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.
Term
Describe how damages for defamation would be proven.
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.
Term
When is proof of malice required?
Definition
Defamation that involves public figures require proof of malice.
Term
Define what is meant by a “public figure.”
Definition
Those voluntarily in the public eye, such as elected officials, actors, sports stars.
Term
What protections do the media enjoy with regards to public figures and what are these protections balanced against?
Definition
Provides the balance between personal rights and first amendment protections for the media.
Term
With regards to a defamation case, define when malice might be said to exist.
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.
Term
Describe the three defenses to defamation.
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.
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
yes
Term
How would you classify the defense used in the aforementioned Bose Corporation v. Consumers Union of the United States?
Definition
I think it falls under Opinion and Analysis.
Term
Provide a basic definition for the tort of contract interference or tortuous interference with contracts.
Definition
That someone intentionally persuades another to break a contract already in existence.
Term
What question did the case In re Marshall involve?
Definition
Whether Mr. Smiths fortune/estate would go to his son or Anna Nicole Smith.
Term
Define false imprisonment. The detention of a person for any period of time against his or her will.
Definition
The detention of a person for any period of time against his or her will.
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?

Definition

“the shopkeeper’s tort” because it generally occurs as a result of shoplifting accusation in a store.

No.

Term
What is the shopkeeper’s privilege?
Definition
It allows a shopkeeper to detain a suspected shoplifter for a reasonable period of time while the matter or incident is investigated.
Term
Why would shopkeepers need this defense?
Definition
Because shopkeepers need the opportunity to investigate matters when someone is suspected of shoplifting.
Term
Specifically identify what a “shopkeeper” would need in most states in order to prove this defense (shopkeepers privilege).
Definition
He must have a reasonable basis for keeping the person.
Term
What conduct does the intentional infliction of emotional distress impose a liability for?
Definition
This tort imposes that liability for conduct that goes beyond all bounds of decency and results in emotional distress in the harmed individual.
Term
In order to recover for the intentional infliction of emotional distress, what must the plaintiff prove?
Definition
They are required to prove outrageous conduct and damages from the emotional distress.
Term
Identify the three different torts that comprise invasion of privacy.
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.
Term
Is the public disclosure of private facts the same as defamation?
Definition
No its more like an invasion of privacy.
Term
What does the tort of unauthorized appropriation involve?
Definition
Using someone’s image, name, or voice without his or hers permission.
Term
Be able to list and identify the five elements of negligence
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.
Term
In what circumstances does this duty(acting like an ordinary person) apply?
Definition
All circumstances.
Term
Beyond this basic duty, identify and describe three other sources for defining duty under specific circumstances.
Definition
Going under the speed limit in bad weather, running a red light, and malpractice.
Term
What “qualified privilege” has been formed as law in a majority of States?
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.
Term
What proof is required that a defendant breached a duty?
Definition
It requires proof that the defendant fell short of the standard of care or breached that duty.
Term
What is the term “standard of care” analogous to? 
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.
Term
What does the element of causation require to be established?
Definition
In negligence, an element that requires the plaintiff to show that the defendants lack of care caused the plaintiffs injury.
Term
Identify and define the test that is often used to determine causation.
Definition
The “but for” test: “but for the action of lack of action of the defendants, the plaintiff would not have been injured.”
Term
What is the “zone of danger?”
Definition
which required that the plaintiff be in the zone of danger when the injury occurs.
Term
Review the case Palsgraf v. Long Island Ry. Co. (p. 191).
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.
Term
Given the judicial opinion in that case, define what is meant by proximate cause. (refering to the train scenario)
Definition
An element of negligence.
Term
Describe five different types of damages that might result from a defendant’s negligence.
Definition
Medical bills, lost wages, pain and suffering, as well as any property damages or punitive damages.
Term
Be able to list and identify the three defenses to negligence
Definition
Contributory Negligence,  Comparative Negligence, and Assumption of risk.
Term
What is the simple definition of contributory negligence?
Definition
It is simply negligence by the plaintiff that is part of the cause of an accident. (the boat example)
Term
What issue becomes complicated with contributory negligence?
Definition
Issue of causation
Term

Provide a descriptive example of the application of contributory negligence.

(what is the effective of this defense?)

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.)

Term
Why have many states adopted comparative negligence as a defense?
Definition
In order to eliminate the harsh effect of contributory negligence.
Term
Describe what a jury determines under this defense and be able to provide a descriptive example.
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%.
Term
What does the defense of assumption of risk require the defendant to prove?
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.
Term
What two things must occur in order to assume the risk?
Definition
To assume the risk, you must be completely aware of the risk and you must assume the risk voluntarily. (ie skiing equipment)
Term
strict liability:
Definition
is absolute liability for conduct with few, if any,  defenses available.
Term
Identify and describe two circumstances that result in strict liability.
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.
Term
How have companies responded to the application of strict tort product liability to their defective products?
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.
Term

Federal government and what article of the U.S. Constitution establishes or creates it.

Article I

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.
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.
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.)
Term
What is the system of different powers used to curb other branches’ exercise of power called?
Definition
Checks and balances.
Term
Why did the drafters of the U.S. Constitution design the Federal government this way?
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”)
Term
Briefly, what do Articles IV through VII deal with?
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.
Term
Review The Bill of Rights (p. 88). How many amendments are there to the U.S. Constitution?
Definition
The first ten of twenty-seven amendments are in the Bill of Rights.
Term
Originally, did the Bill of Rights apply to the individual States, or just to the Federal government?
Definition
They originally applied only to federal procedures; the 14th extended them to apply to the state as well.
Term
What, if anything, changed this(the Bill of Rights apply to the individual States, or just to the Federal government)? 
Definition
The 14th amendment extended them to apply to the state as well.
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.
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.
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.
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.
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.
Term
Who “bumped heads” with the Court several times during the 1930s?
Definition
Congress and President Roosevelt bumped heads with the court.
Term
What did the Court consistently refuse to validate in 1935 and 1936?
Definition
Federal legislation of manufacturing, operations, and labor.
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).
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?
Definition
The court ruled that intrastate activities, even though local character, may still affect interstate commerce and thus be subject to federal regulation.
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.
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.
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.
Term
What is the States’ police power?
Definition
The states power to pass law that promote the public welfare and protect public health and safety.
Term
What, inevitably, will burden interstate commerce?
Definition
It is inevitable that some of the laws dealing with public welfare and health and safety will burden interstate commerce.
Term
What have many State statutes that have been constitutionally challenged attempted to regulate?
Definition
Regulated highway use.
Term
Identify two cases, the years they were decided, and the respective issues that were analyzed by the Supreme Court.
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.
Term
What question, given The Balancing Test, must the courts answer in constitutional cases involving interstate commerce?
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.
Term
What 1824 case defined foreign commerce and how did it define it?
Definition
Gibbons v. Ogden, it defined is as foreign commerce as any “ commercial intercourse between the United States and foreign nations
Term
Is Congressional regulation of foreign commerce restricted by intrastate standards or limited by the place of transaction?
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.
Term
What do Article I, Section 8, Paragraph 1 and the Sixteenth Amendment of the U.S. Constitution give Congress the power to do?
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.”
Term
What four standards must State and local taxes on interstate business meet? Describe each of them.
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.
Term
What part of the U.S. Constitution governs conflicts between State and Federal laws and is sometimes called the Supremacy Clause?
Definition
Article VI.
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)?
Definition
The federal statute, regulations, executive order, or treaty controls the state or local law.
Term
What do most Congressional statutes not include regarding preemption?
Definition
Congressional statutes do not include the congressional intent on preemption.
Term
How is the question of preemption determined?
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?
Term
Review and be able to recite the First Amendment (p. A-7).
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
Term
What is commercial speech?
Definition
It is referred to as the speech of business, which is communication used to further the economic interests of the speaker.
Term
What is clearly a form of commercial speech?
Definition
Advertising is clearly a for of commercial speech.
Term
Until the 1970s, what was virtually unlimited with regards to commercial speech?
Definition
Traditional speech afforded protection under the first amendment. Government regulation was virtually unlimited.
Term
What three factors are examined by the courts when weighing the benefits of commercial speech against government regulations?
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?
Term
Describe the “Son of Sam law.” What State passed this law and why do you think it was passed?
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
Term
Who brought suit on the basis that the law violated the First Amendment?
Definition
Simon and Schuster brought suit maintaining that the so-called “Son of Sam law” violated the First Amendment.
Term
Who did the U.S. Supreme Court agree with and what did the Court hold?
Definition
The US Supreme Court agreed with Simon and Schuster and held hat the statute was overly broad.
Term
What is corporate political speech and what three generalized forms does it take?
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).
Term
What has the Supreme Court noted in its opinions on the topic of political donations?
Definition
“money is like water and it always finds its outlet,” and the donations and PAC activity became a concern.
Term
What is FECA and what did Congress do with regards to it in 1972 and 1974?
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.
Term
Was FECA challenged? When?
Definition
Yes in 1976 by Buckley v. Valejo.
Term
What did the U.S. Supreme Court do in the case Buckley v. Valejo?
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.
Term
What are “hard dollars?”
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.”
Term
What are soft money donations?
Definition
-or the unlimited donations to parties, think tanks, and other groups, became extensive.
Term
What legislation did Congress pass in 2002?
Definition
Congress passed the Bipartisan Campaign Reform Act of 2002.
Term
What is this legislation often referred to as?
Definition
Often referred to as McCain-Feingold law
Term
What does it regulate? (McCain-Feingold law)
Definition
It regulates the use of soft money by political parties, officeholders, and candidates.
Term
What 2003 U.S. Supreme Court case concluded that soft money could be regulated?
Definition
McConnell v. Federal Election Comm’n
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?
Definition
First National Bank of Boston v. Bellotti
Term
What is this doctrine commonly known as?(protects political speech)
Definition
Commonly known as the Bellotti doctrine.
Term
Review and be able to recite both the Fifth Amendment (p. A-7)
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
Term
the Fourteenth Amendment, Section 1 (p. A-8). Section 1.
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.
Term
What is the right of eminent domain?
Definition
The right of a governmental body to take title to property for a public use.
Term
Where is this right (eminent domain) established?
Definition
The right is established in the Fifth Amendment.
Term
Given eminent domain, what can governmental entities do that private individuals cannot?
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
Term
Name and describe the three factors that must be present for the right of eminent domain to be properly exercised.
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.
Term
To exercise eminent domain, what must a governmental authority establish as a matter of necessity?
Definition
They must establish that their taking is necessary for the accomplishment of a government or public purpose.
Term
Regarding this necessity, what the U.S. Supreme Court determine in the 1946 case United States ex rel. TVA v. Welch?
Definition
“the role of the judiciary in determining whether that power is being exercised for public purpose is an extremely narrow one”
Term
Did the 2005 case Kelo v. City of New London change things?
Definition
Yes
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?
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.
Term
Does mere regulation constitute a taking?
In order to constitute a taking, how far must it go?
Definition
No. Rather, a taking must go so far as to deprive the landowner of any use of the property.
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.
Definition

1)    Loretto v. Teleprompter Manhattan CATV Corp (1982)
2)     Nollan v. California Coastal Commission (1987)
3)     Lucas v. South Carolina Coastal Council (1992)
Term
What is meant by just compensation? The party whom the property is being taken be given just compensation.
Definition
The party whom the property is being taken be given just compensation.
Term
What is just compensation always a question of?
Is this easy or difficult to determine?
Definition

Always a question of fact.

It is difficult to determine.

Term
Why would “fair market value” be important when considering just compensation?
Definition
The buyer needs to even or profit.
Term
How did the 1943 case United States ex rel. TVA v. Powelson define fair market value?
Definition
“what a willing buyer would pay in cash to a willing seller.”
Term
What constitutional authorities require State and Federal governments required to provide citizens due process under law? .
Definition
Both the fifth and the Fourth Amendments
Term
What does the right to procedural due process require?
Definition
It requires notice and the opportunity to be heard before rights or properties are taken away from an individual or business.
Term
Name two familiar due process rights that exist in the criminal justice system.
Definition
The right to a lawyer and the right to a trial.
Term
Is procedural due process a part of civil law as well?
Does the due process right apply to State and Federal agencies?
Definition

Yes.

The Due process right applies to both state and federal agencies.

Term
If so, describe three actions taken by an agency where due process must be applied.
Definition
Taking away a business license, suspending a license, and imposing fines for violations.
Term
Must due process be applied before an individual’s property is taken?
What three things comprise the concept of property?
Definition

Yes.

Property includes: land (as in the case of eminent domain), rights of possession (tenants and leases), and even intangible property rights.

Term
For example, what would a student have a right to before being expelled?
Definition
The right to be heard before the property.
Term
What three things does substantive law consist of?
Definition
Consists of rights, obligations, and behavior standards. (criminal laws are substantive law).
Term
What 2007 case helps to define “void for vagueness” and how?
Definition
Gonzales v. Carhart, the decision that dealt with a federal statute that prohibited partial birth abortions.
Term
Describe how each of these frameworks is impacted by their countries’ historical, legal and religious circumstances.
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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