Exam 1.A by Wittgenstein


									Exam 1 (regular questions); Version A.

Name: ____________________________; ID: _______________________

Directions: Do not write on the exam, other than placing your name and number
above. Do not write the answers on this examination; write them only on the
answer sheet. Points will be deducted if you exam is marked. Keep your answer
sheet covered. No bathroom breaks.

1. Who is it that was famous for making this basic point in a legal treatise: that, when judging actually does go
   wrong, judges don’t end up making a new law when they correct an old precedent, they merely vindicate
   the law from misrepresentation. Therefore, there is no discretion used even when precedent is overruled.
   All that is happening is that “the law” is being enforced. (Once again, I want to know who was the FIRST
   person to say this in a legal treatise).

   A. Realists
   B. Blackstone
   C. Holmes
   D. Hamilton
   E. Landell

2. Select the Best. According to your instructor, courts of equity in England during the middle ages were
   staffed by:

   A. Viscounts
   B. Patricians
   C. Military personnel
   D. Clergy
   E. Gentry

3. TRUE OR FALSE. According to your instructor, Classical Legal Thought says that “law” is its own science
   composed of : (1) the Blackstonian idea of finding the answers to disputes in the sacred customs and
   tradition of a political culture; and (2) the Landellian idea that law is a self-contained form of reasoning
   involving analogy, syllogism, induction and logic.

4. Select the Best. According to your instructor, what does American constitutionalism say about the
   rationalization for, or legitimacy of, the statutory power:

   A. “where reason stops, the law itself also stops.”
   B. “might makes right”
   C. “machine makes right”
   D. “law is what the lawgiver says”
5. Select the BEST. According to your instructor, what did Holmes think should replace axioms, corollaries,
   mathematics and syllogisms as the basis of judging:

   A. Policy intuition
   B. Popular morals
   C. Social needs
   D. All of the answers in this question are correct

6. According to Justice Antonin Scalia in your blue text book, the rules of law laid down by judges in past cases
   do NOT constrain a judge from making a decision in a case that he or she thinks is best, because judges are
   trained in the art of distinguishing (and therefore, modifying) precedent from the very first year of law

7. Select the BEST. According to your Van Geel text, a "material fact" is

   A. what distinguishes one precedent from another, making the cases factually distinct
   B. what a star witness will testify to in a murder case
   C. any evidence that is deemed relevant and therefore admitted into a court of law during a trial
   D. a conclusion proved to a point of substantial certainty

8. The American legal system has the following hierarchy (first in list is more important than next):

   A. constitution, statutes, administrative regulations, common law
   B. constitution, common law, statutes, administrative regulations
   C. common law, constitution, statutes, administrative regulations
   D. statutes, constitution, common law, administrative regulations

9. According to your instructor, the point in history when courts as a social organization begin to change their
   essential nature from a mere bureaucratic extension of the King’s will into something that is said to involve
   “elders” deciding disputes according to the sacred traditions and custom of the people, begins with:

   A. the creation of the Court of Exchequer in 1400
   B. the announcement of Bonham’s case in 1610
   C. the creation of the Court of Chancery, an equitable court, in 1474
   D. the creation of the Magna Curia, the use of monks who wrote down case decisions on scrolls, and of
      Knights who traveled back and forth to the communities making the resolution of disputes “common” in
      each place.

10. Select the Best. Imagine a hypothetical syllabus with a stated cutoff for grades (90% = A-). Anyone below
    90% would therefore receive below an A. However, imagine that the professor decides at the end of the
    year to scale the grades so that 88% is an A-. He or she does this because the material was too difficult.
    The syllabus does not appear to permit this. According to your instructor, if one were to consider the
    syllabus to be "the law" (technically, the positive law), then this would be an example of:

     A. the use of positivism, because the syllabus rule was enforced
     B. american constitutionalism, because the professor used judicial review
     C. classical legal thought
     D. violation of University policy, because the syllabus is considered a contract.
     E. the use of "natural law," because the professor is being a care-taker for the formally articulated rule,
        and that, if the rule were perfect, it would have encompassed this situation.
     F. blackstonian decision making

11. According to your instructor’s lecture, the word that Rome used to refer to its aristocratic elites was:

     A. Plebeians
     B. Patricians
     C. Gentry
     D. Peerage
     E. Republicans

12. According to your instructor, the style or genre of judicial decision making in the 1800s was described in
    class as:

     A. might makes right, such as the Twelve tables
     B. decision by empirical social science
     C. decision by platitude/maxim
     D. “sort of like bad philosophy”

13. True or False. According to your instructor, the outcome of Bonham’s case suggested that right reason
    and common law could trump a statute.

14. According to your instructor, one could characterize the kind of “law” that eventually prevailed in Rome
    during the story of the land reform dispute as:

     A. "republican," because Rome had developed into a republic with a bicameral legislative assembly
        (upper house and lower house) that was elected by the people
     B. governance by due process, because of procedural safeguards that developed in the Roman Republic
        prior to the rise of Caesar
     C. "might makes right," meaning that the central wishes of powerful social clans were not to be
        disobeyed, no matter what the written law said
     D. governance by the rule of law, because the Twelve Tables prohibited Plebs from engaging in conduct
        detrimental to the state.

15. According to your instructor, the 9th Amendment acts as a loophole in American constitutionalism

     A. it contains vague words such as “due process,” which can be interpreted any way a judge likes
     B. no written liberty guarantees should be necessary if “machine makes right”
     C. it states that other unspecified rights exist in a document that was supposed to “codify the
     D. it specifically states that the common law can trump a statute
 Notice! The following questions are MATCHING. Select the BEST according to your professor's lecture:

                                            A. political assembly
                                            B. codified law
                                            C. universality
                                            D. Magna Curia
                                            E. Justificatory

   16. an important event in the history of statutory law that says "no one is above the law, no one is below
       the law," including law makers.
   17. Congress or Parliament
   18. enacted statutes
   19. expression used by your professor to indicate the idea that "law" had to be grounded in something
       right, true, superior or correct before it could be a proper pronouncement
   20. the Great Council

Select the BEST. Match the following according to your professor's lecture:

                                       A. Court of the Kings Bench
                                       B. Court of the Exchequer Pleas
                                       C. Court of Chancery
                                       D. Writ System
                                       E. Court of the Common Pleas

 21. appellate court
 22. court of equity created in 1474
 23. tax court
 24. trial court that recognized 500 distinct types of lawsuits; it could issue awards of money damages and try
     criminal cases
 25. the "causes of actions" (i.e., lawsuits) that could be filed under the common law as it developed into a
     distinct body of rules

26. According to your instructor, after the Plebeians were able to obtain their own assembly, one of the first
    important reforms they asked for was:

     A. To be eligible to join the Senate
     B. To marry Patrician women
     C. To expand the right to vote
     D. To have the law stated and posted

27. Myra Brandwell wanted to be a:

     A. Engineer
     B. Lawyer
     C. Preacher
     D. Doctor

28. According to your instructor, what person attempted to justify the creation of a separate and independent
    judiciary using the idea that “judging is special:”

     A. Jefferson
     B. Hamilton
     C. Realists
     D. Holmes
     E. Madison

29. According to your instructor, Oliver Wendell Holmes served on the Supreme Court until the age of
    ______, which is a record.

     A. 77.
     B. 90.
     C. 84.
     D. 96

30. Select the BEST. According to your instructor, American constitutionalism was said to do something
    interesting with respect to the distinction between positive law and natural law.

     A. it made it possible to use Bonham's case to declare acts of the Congress unconstitutional, because
        there was now a precedent for "right reason" declaring statutes void.
     B. it made positive law justificatory and natural law non-justificatory
     C. It made the natural law the product of right reason
     D. it shunned all forms of natural law completely when it separated church from state
     E. By "codifying the fundamentals," American constitutionalism had seemed to suggest that natural law
        could only exist where positivism had allowed or sanctioned it. That is, legality of any kind – even
        constitutions -- must be written and sent before a political assembly for approval, before it is to be

31. True or False. With respect to the legal role that precedents play on the United States Supreme Court,
    your Van Geel text asserts that it is commonplace and typical for justices to consistently treat existing
    precedents as "settled law" and to follow them despite the fact that they personally disagree with the
    conclusion the precedent requires.

32. According to your Van Geel text, "dictum" is

     A. the plural of the name "Ditka," who is the famous football coach, and is used to denote when two
        Ditkas are standing together in the same place.
     B. the ratio decidenti of the case
     C. latin for "let the decision stand"
     D. the part of the case reasoning that relies upon analogy, deduction, logic and analysis
     E. that portion of a court's opinion that is irrelevant to its decision, such as "an aside," a "remark by the
        way," statements based upon hypothetical facts, or unnecessarily broad characterizations of an
        announced legal rule.
33. According to your instructor, the two key points made by Hamilton in Federalist Paper #78 concerning
    why the public should not fear the new judicial branch, are that:

     A. The 10th Amendment insures that any attempt at judicial tyranny can be overturned by a majority of
        the states in a call for a constitutional convention
     B. Judges do not possess the purse or sword (key political powers), and reach their conclusions not by
        force or will, but judgment ( judging is “special.”)
     C. The pro-con interest group competition in the other branches of government will cause only men of
        moderate politics to be selected to wear the robe
     D. Judges have to run for election, so popular sovereignty would protect the public from tyranny
     E. Only the most wise and neutral men will ascend to the position

34. According to your instructor, _________ refers to the formally enacted rules in lawbooks (legal text),
    while ________ refers to extra-textual authority

     A. positivism, natural law
     B. natural law, positivism
     C. realism, positivism
     D. justificatory power, non-justificatory power

35. According to your instructor, twenty years after Oliver Wendell Holmes announced his views about the
    foundations of judging, a group of legal academics emerged that advocated the same basic ideas as
    Holmes. The name of this group is:

     A. Formalists
     B. Positivists
     C. Holmesians
     D. Realists

36. According to your instructor, "classical determinism:"

     A. Is a view in the 1800s that came after deism, and suggested that God, in fact, did intervene in world
        affairs so that many of the choices of humans were according to a predestined plan.
     B. is a view in the 1700s in colonial America that says: God created the universe and everything in it, but
        does not personally intervene in its workings. Humans, therefore, have free will that determines what
        fate the world will see.
     C. is exactly the same thing as classical legal thought, meaning the two are perfect synonyms in the way
        that happy and joyous are.
     D. says that there is only one certain, pre-existing answer to a legal case, and only properly trained
        judges can find it – and when they do, they are not playing politics.

37. What sentiment would likely NOT be echoed by a realist:

        A. “law” is made, not found

        B. “law” is not self-contained

        C. “law” is stable, stagnant and unchanging

        D. “law” is good social policy
38. According to your instructor, which school of thought is considered to be most dominant in American legal
culture today?

        A. classical legal thought

        B. positivism

        C. sociological jurisprudence

        D. neo-originalism

Note! The following questions involve a series of true/false options. Answer “A” for true; “B” for false. All of the
questions concern the following matter:
When getting the class to try common-law decision making as it was advertised in the middle
ages ("the elders"), your professor made use of the following examples for class discussion:

39. the common-law of tipping.

40. the Seinfeld parking incident

41. gun ownership

42. the father giving away the bride

Note! The following questions involve a series of true/false options. Answer “A” for true; “B” for false. All of
the questions concern the following matter:

Here is the question: According to your instructor, the Realists were:

 43. a group of scholars that is associated with Christopher Columbus Langdell, the famous Dean of the
     Harvard Law School.
 44. A group of scholars who would have agreed with the majority decision in Lochner
 45. a group of academics writing in the aftermath of Holmes who agreed with his criticisms of classical
 46. A group of scholars who tried to make the constitution be interpreted according to the original intention
     of the framers (also called "originalists")

 Match the following according to your instructor's lecture:

                                                  A. a priori
                                                  B. jurisprudence
                                                  C. epistemology
                                                  D. paradigm

                                                  E. Metaphysics
  47. something considered foundational without need of proof or evidence. A starting point for an argument
      that is never in need of being questioned or justified. For example, God exists. Tradition rules.
  48. also known as "philosophy of law," this is the application of epistemology to law. In particular, what is
      the proper way to reach a legal conclusion?
  49. the consideration of which of our beliefs are good enough to be coronated as "knowledge," and what is
      it that sets them apart from the beliefs which cannot attain this status.
  50. A justificatory context. When we don't know something for certain, we use this as our best scientific or
      educated idea about what the best answer is. Sometimes, there can be more than one that compete
      for the best approach.

  51. Something like “magic” in the real world. Something non-physical occupying the physical universe, yet
      not subject to its laws.

Match the following according to your professor's lecture:

                                        A. Christopher Columbus Langdell
                                        B. Oliver Wendell Holmes
                                        C. William Blackstone
                                        D. Roscoe Pound

  52. Wrote the Common Law in 1881, a groundbreaking treatise
  53. Dean of the Harvard Law School in the late 1800s who created the case book method of instruction.
  54. a legal academic in the 1920s who was a realist
  55. English legal theorist who wrote that the common law was an exposition of the great traditions and
      customs that pre-existed the very judicial decisions that would enshrine them into a legal precedent.

Note! The following questions involve a series of true/false options. Answer “A” for true; “B” for false. All of
the questions concern the following matter:
Please indicate whether the following statements about the Lochner case are true or false:

56. Holmes in the Lochner case argued that, in essence, legal problems could not be resolved with an a
    priori decision format, and that the Constitution was neutral on the competing economic theories (laissez
    faire and paternalism) that existed in the emerging political marketplace.
57. it involved bakers working more than 60 hours per week
58. it is the case where the famous Brandeis Brief was submitted
59. it involved New York trying to ban alcohol
60. it was specifically about whether the state could enact laws that kept women from working overtime,
    because, back then, having your mother work overtime was something that was thought to be

Note! The following questions involve a series of true/false options. Answer “A” for true; “B” for false. All of
the questions concern the following matter:
When illustrating examples of classical legal thought IN CLASS, your instructor made mention

61. The famous decision involving Myra Bradwell
62. John Marshall's famous decision in Marbury v. Madison
63. The Wynehamer case involving prohibition in the 1800s in New York.
64. Brown v. Board of Education

Note! The following questions involve a series of true/false options. Answer “A” for true; “B” for false. All of
the questions concern the following matter:
Your instructor's lecture mentioned the following points about "precedent:"

65. Other social organizations, such as CEO's of corporations and legislators, do not define their decision
    making process in terms of making sure that new choices are consistent with, and a product of, past
    choices. In fact, this is what makes courts as organizations distinct.
66. The first case to ever create a legal precedent was Bonham's case in 1610.
67. The word’s etymology comes from the concept of a “president,” which means “the central source of
    authority,” which is why the words sound so much alike.
68. The root of the word is “precede,” which suggests that the case resolution actually exists before the case
    is heard

Note! The following questions involve a series of true/false options. Answer “A” for true; “B” for false. All of
the questions concern the following matter:
According to your instructor, American constitutionalism provided the following innovations:

69. it explicitly recognized that judges were policy voters the same as legislative representatives
70. it was the first attempt by any society to have voting or a system that shared the power of governance
    with other powerful sectors of society
71. America created a separate democratic ritual for enacting constitutions versus statutes, such that the
    authors of the former were not the same entity as the latter, and the actual provisions had to be sent
    directly to the people for approval.
72. By creating an enhanced and distinct democratic ritual for its constitution, America had sort of created a
    "super statute" -- i.e., democratically-sanctioned legality that stood in higher regard than ordinary

To top