MIDTERM QUESTIONS!
- The rules by which evidence may be presented at trial, and the rules by which an appeal may be made from an adverse judgment are instances of
| substantive law | ||
| procedural law | ||
| administrative law |
- According to John Stuart Mill’s “principle of utility” (“the greatest happiness principle”) our action is good and right in proportion, as it tends to maximize the total
| quantity of political liberty for all citizens of our community | ||
| quality pleasure for all those that are concerned with the action, meaning those with legitimate and authorized rights that might be affected by the action | ||
| quality pleasure for the all persons, regardless of whose legitimate interests stand to be affected by the action |
- The separation of law and public morality is a doctrine common to
-utilitarianism and legal positivism
-natural law doctrine and legal positivism
-contractarianism and pragmatic realism
4. In early American cases in which the “law of nature” was invoked on an issue of law, such as In re Antelope (U.S., 1825), and U. S. v. Holmes (E.D. Penn., 1842), to have legal effect the Court required that the law of nature must be recognized
as part of the law of nations
as part of the civil law
as including the civil law
5. The proposition that legal duties and rights are “but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court,” is a proposition of
Immanuel Kant’s doctrine of the categorical imperative
John Stuart Mill’s theory of utilitarianism
Oliver Wendell Holmes, Jr.’s jurisprudence of legal pragmatism
6. Kant argued that British sentimentalists (such as the economist and philosopher Adam Smith and Smith’s close friend historian and philosopher David Hume) had confounded problems of morality with questions relating rather to
the distribution of rights and obligations in civil society
the compassionate and beneficial promotion of personal well-being
the reciprocal coercion of competing interests tending toward a maximal distribution of individual liberties protected under universal laws
7. According to Immanuel Kant’s “principle of autonomy,” it is a “categorical imperative” that our acts be in conformity with those that would be willed by a “good will,” that is, a will that
does not neglect its duty under the positive common law
is beneficent to the greatest number of people
is designed by nature to give universal laws to itself and all to rational beings
8. Kant believed that what is good and right consists only in a rational being’s respect for laws of conduct toward others that
are free from subjective biases of preference or sympathy, or any expectation of either private or public advantage
tend to result in the greater amount of health and welfare and least amount of harm
seek to maximize personal happiness at the expense of individual liberty
9. Kant’s “imperative of duty” under the “moral law” requires that we act as if the principle or maxim of our action were to become
by our own will, a universal law of nature for all rational persons
a universalizable duty to respect the individual interests of other persons in our society
a universalizable duty of care to protect others from harm within the foresight of the reasonable person
10. The “contractarian” view of social justice according to which social and economic inequalities should be regulated so that they serve to benefit the least advantaged follows as a corollary from
Kant’s first principle of justice in “The Doctrine of Right” which states that justice consists in a reciprocal coercion of personal freedoms that results in the maximal or most extensive distribution of liberties under universal laws
Mill’s principle of utility in “Utilitarianism” which states that the good and right consists in what tends to produce the maximal predominance of quality pleasure over suffering for all that might be affected
Aristotle’s theory of distributive justice in “The Nicomachean Ethics” which defines the rule of such justice as requiring a combination of the intellectual virtue of practical wisdom in decision making and the moral virtue of exercising the rational and appropriate degree of feeling and emotion in action
11. Oliver Wendell Holmes, Jr. observed that “the law is the witness and the external deposit of our moral life,” but he averred that
its purpose is not necessarily to produce good citizens
only bad man would use legal knowledge to predict the necessary consequences of actions
the power of any legal jurisdiction does not coincide with that of any system of morals
12. In a negligence action brought by the parents of Tatiana Tarasoff against the Univ. of California, the parents alleged that employees of the UC Berkeley campus negligently failed to warn them of a danger to their daughter’s life, despite disclosures made to defendant therapists at the college by a male patient receiving therapy, that he intended to kill their daughter. The superior (trial) court dismissed the action for failure to state a claim, since the pleadings alleged that the therapists did in fact request police assistance in securing the patient’s confinement
as authorized under the California Evidence Code, though the therapists could not foresee that the patient presented a threat to Tatiana
as authorized under the California Evidence Code, because the therapists predicted that the patient presented a threat to Tatiana
even though not authorized under the California Evidence Code’s doctor-patient privilege, though the therapists did not predict that the patient presented a threat to Tatiana
13. In 1976, the California Supreme Court reversed the trial court’s dismissal of the Tarasoff family’s lawsuit, permitting the Tarasoffs to amend their complaint by alleging that the university therapists had negligently failed to
determine that the patient posed a serious threat of danger
exercise reasonable care to protect the foreseeable victim of danger
exercise their best professional judgment
14. In the Tarasoff case, the California Supreme Court discovered an exception to the common law rule that a person owes no duty to another to warn others endangered by persons whose conduct he has no duty to control, announcing that such a duty may exist by virtue of
constitutionally protected due process liberty interests
the special relation between therapists of the Univ. of California and a reasonably foreseeable victim of the patient Prosenjit Poddar
the special relation between therapists of the Univ. of California and the patient Prosenjit Poddar, who the therapists predicted, as they should have, would harm the plaintiff’s daughter
15. H.L.A. Hart, denying that statutes of law are “commands” in some fundamental sense, urged courts to preserve the utilitarian distinction between law as it is and law as it ought to be, arguing that a court deeming some statute to be patently immoral may hold that the statute
lacks the force of law because contrary to the existing conscience of the public
lacks the force of law because contrary to the conscience of humanity
is to be held in disregard and immaterial in view of the court’s construction of what makes up the “settled” meaning of the law
16. In the 1988 “Matter of Baby M” case, the New Jersey Supreme Court invalidated any purported rights under a contract between the infertile wife of an artificial insemination donor, and a “surrogate” fertile woman, a married woman with two prior children, who would receive a fee for undergoing the artificial insemination by the clinic and for carrying the fetus to healthy childbirth, ruling in favor of custody of the child by the surrogate fertile woman, partly because the contract had
offered no compensation for the adoption itself, as required by statute and regulation
offered therapeutic counseling to assist a biological mother in choosing whether to give up her biological child for adoption, as required by statute and regulation
illegally purported to be irrevocable
17. Appellate level courts, in reviewing decisions that have been brought to them by appeal from a lower court may, if called upon to do so,
weigh evidence not presented on the trial
find to be true extra facts other than found by the trial court
interpret the legal consequences of facts found by the jury
18. The legislature may enable the executive branch to establish commissions, agencies, and other departments to promulgate rules enforceable as law known as
constitutional law
statutes
regulations
