Docstoc

studyguide.final

Document Sample
studyguide.final Powered By Docstoc
					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.

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, the term “progressive determinism” means:

1. there is only one right answer to a legal case, and it is certainly known through a self-contained process of
   reasoning that is analogous to mathematics or physics.
2. there are correct answers to legal cases, but the answers are probabilistic and found through social science
   empiricism
3. another name for sociological jurisprudence
4. a political movement in the 1900s that wanted to expand voting rights to women and directly elect
   Senators

5. Your professor discussed possible criticisms with the idea that judges should follow a rule that is
UNIVERSALLY admitted to be faulty/illogical. One of these criticisms was named the “fallacy of repair.” It
argued that:

        A. when judges fix a rule that everyone regards as “bad,” they don’t create any extra work for
        the legislature. They either save work for the legislature or, at the very least, require the
        legislature to fix the court’s improvement. Either way, it would not be worse to have the judge
        fix it.

        B. there can never be such a thing as a rule that is universally agreed to be “bad” or “faulty.”

        C. one cannot repair a bad rule; one can only legislate a new one

        D. legislatures are better equipped at repairing bad rules because they must run for election,
        obtain a policy mandate and service constituent needs.

6. Your professor discussed possible criticisms with the idea that judges should have no discretion when
making legal decisions, and that a judge should always follow determinate rules, like those found in the
federal sentencing grid. One of the criticisms of this idea was that it resulted in a tradeoff. The tradeoff
was:

        A. that a justice who relied upon grid sentencing would be more likely to command respect and
        legitimacy for the judiciary as an institution
        B. that a justice who never had any discretion would also have no flexibility to innovate and to
        solve problems that could otherwise be fixed in situations where a judge was allowed to use
        judgment.

        C. that a justice who relied upon the federal sentencing guidelines would be more likely to
        discriminate against certain groups.

        D. that a justice who lacked discretion would be more likely to enforce rules agreed to by a
        majority of people in the country.

7. Your professor’s lecture noted the following about the case of Neal v. United States:

        A. the defendant got away with murdering his grandfather in order to receive an inheritance

        B. the defendant ultimately lost the case because the Federal Sentencing Guidelines required
        that the weight of blotter paper be added to the weight of LSD for purpose of determining the
        quantity of drugs being possessed. Had the guidelines not said this, the defendant would have
        served less time in jail.

        C. the defendant won the case because the Court overturned the federal sentencing guidelines,
        which allowed the weight of blotter paper to be added to the weight of LSD for purposes of
        determining the weight of the drug.

        D. Even though the Federal Sentencing Guidelines were amended so that blotter paper was NOT
        added to the weight of the drugs, the defendant still lost the case. That is, the defendant lost
        even though the guidelines supported his position.

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

  A. Statutification
  B. Hyperlexis/Legalism
  C. positivism
  D. Natural law
  E. Social morality


  8. Proliferation of statutes
  9. Proliferation of all forms of positive law
 10. Law is nothing but the “cold, naked words”
 11. Extra-textual authority
 12. tends to degenerate into rule-following in a positivistic culture.
13. According to your instructor, the development of positivism in American legal culture can be seen as
a natural occurrence of:

        A. the change from the “pen and quill” governance of agrarian society, which had little positive
        law, into the modern administrative state, which now uses statutes and administrative
        regulations to police the details of society much more than court-made, common-law rules;

        B. the transformation of “science” from a contemplative or logical endeavor into a strictly
        empirical pursuit;

        C. new information-dense technologies like the internet and computers, which enabled
        services like WestLaw and Lexis to be created, allowing for lawyers to process and retrieve
        positive law much more easily;

        D. the rise of the movement in logical positivism in philosophy and of the Popperian doctrine of
        falsification in philosophy of science;

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, problems with sociological jurisprudence include the following:

14. judges do not know or understand statistical methodology
15. The realist movement put a damper on it
16. Empirical science, particularly social science, does not have very many “universals.”
17. The decision in Brown v. Board of Education was too controversial.
18. Empirical science, particularly social science, is sometimes politicized.



19. According to your instructor, the “deference principle” that emerged in the 20th century in legal culture
refers to:

        A. Hamilton’s idea that judging is special, and that other organs of government must defer to the
        Court’s reading of the Constitution

        B. Hamilton’s idea that the court must rely upon the other institutions of government to support its
        decisions.

        C. the idea that science was best understood as an empirical rather than self contained endeavor

        D. the idea that courts should substantially defer to political assemblies when deciding cases, because
        “law” is nothing but making policy judgments, and legislatures are better suited or structured for that
        sort of behavior.


20. True or False. According to your instructor, in the "real world," justices of the United States Supreme Court
    tend to apply canons of construction to interpret provisions the Bill of Rights

21. According to your instructor the term "Kantian positivism" is also called:
         A. Originalism

         B. Inductive Positivism

         C. Analytic Positivism

         D. New-Originalism

22. When your instructor was explaining skepticism, which of the following examples did he use:


         A. you are hallucinating

         B. the Earth wasn’t created in seven days

         C. Griswold v. Connecticut

         D. United States v. Neal

23. When explaining external skepticism, the instructor used the following analogy:


         A. birds in a nest

         B. a grasshopper on a rice patty

         C. a fish in a fishbowl

         D. a baby kangaroo in the mother's pouch

         E. a frog in a pond

24. According to your instructor, INTERNAL skepticism argues that you will not be able to find truth because:


         A. You are in a dream right now

         B. There is a fundamental contradiction that prevents truth from existing.

         C. Truth always lies outside your context and which, by definition, you cannot attain.
            Although truth within a context can exist, you are biased and flawed; your passions and
         D. motivations simply will not let you see it.

25. According to your instructor, Karl Popper is important to structuralism because:

            He claimed that law’s ultimate foundation was moral reasoning, performed through a mixture of
         A. casuistry and reasoning with universals.
            He advocated “logical positivism,” which held that if something could not be verified by the five
         B. senses, it was meaningless.
            His view suggested that the key to knowing something lies in the power of the mind to negate
         C. rival possibilities rather than to confirm with certainty the one true answer. In this sense, thinking
            is negating.
            He was a philosopher of science who invented the idea that hypotheses must be verified. Hence,
         D. he believed the mind could directly verify right answers.
26. According to your instructor, EXTERNAL skepticism says that there can be no known truth, because:

               Although truth within a context can exist, you are biased and flawed; your passions and
            A. motivations simply will not let you see it.

            B. Bell curves prevent people from having equal capacities to understand

            C. You live within a context that cannot be transcended; real truth lies outside of this context

            D. It is simply rational for humans to believe what pleases them.

27. According to the language-determinacy continuum your instructor created in class, constitutional
    sentences are more likely to have what semantic characteristic?


            A. they are as rigid as computer syntax and mathematical notation

            B. they are as rigid as certain kinds of scientific jargon

            C. they are as determinate as statutory paragraphs in codebooks

            D. they tend to be more authoritative
               they are closer to indeterminate, and are comparable to the kinds of sentences you find in the
            E. Bible.

----------------------------------------------------------------------------------------------------------------------------- --------
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, Dworkin's main ideas are:

28. Justices seek to develop judicial opinions that will provide the most overall integrity to the words and
principles of the law

29. Although "political values" are part of the equation; they are only a tie-breaker.

30. “Law” (as in, correct judging) has nothing to do with; it has to do with science

31. Authoring a major constitutional decision is like writing a chapter in a chain novel. The Justice has to write
the 6th chapter of a book that already has the first 5 completed. The goal is to make the book as best it can
be.

32. Legal systems should involve rules only, not discretion. You can’t have a legal system that is in any way
discretionary.



33. 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

34. When discussing examples of sociological jurisprudence in class, your professor discussed which of the
following:

        A. the speed trap

        B. inheritance by murder

        C. the government chartering a national bank

        D. women wanting to become attorneys

        E. selling LSD on blotter paper



35. According to your instructor, which case is associated with the decline of sociological jurisprudence:

        A. Planned Parenthood v. Casey

        B. Brown v. Bd of Education

        C. Craig v. Boren

        D. Riggs v. Palmer

        E. Neal v. United States

36. According to your instructor, another name for sociological jurisprudence is:

        A. progressive determinism

        B. classical determinism

        C. skepticism

        D. epistemology

37. Select the BEST. According to your instructor, the POSITIVISTIC view in Riggs v. Palmer was:

        A. the legislative rule was incomplete; therefore, the judge had to intervene by consulting some other
        sort of authority not explicitly sanctioned by the positive law

        B. the legislative did proper justice; therefore, the judge did not need to consult some other sort of
        authority not explicitly sanctioned by the positive law.

        C. People can murder their kind as a method of inheritance so long as the will statute doesn’t forbid it.

        D. The common law and right reason can overturn a statute


    Match the following according to your professor's lecture

      A. old originalism
      B. critical legal studies
      C. pragmatism
      D. progressive determinism
      E. new (neo)originalism

     38. the judge should do what the framers of the constitution would want them to do
     39. the judge should preserve the policy expectations of the 1787 culture when reading the words of the
         document
     40. the judge should consult empirical social science when making a decision
     41. the judge should vote for outcomes that disrupt the power structure
     42. the judge should defer to the existing power structure



43. Student Question. According to the assigned reading by Wilson, the scholar who is most associated with
    the comparison of law to mathematics is probably:

     A. Alexander Hamilton
     B. Christopher Columbus Langdell
     C. William Blackstone
     D. Lord Coke

44. Student Question. According to the assigned reading from Wilson, the epistemology of American legal
    thought can be said to fit into the following approaches:

     A. determinism, utilitarianism and attitudinal
     B. determinism, structuralism and skepticism
     C. liberal, conservative and neutral
     D. progressivism, classicism, and ancient

45. According to the assigned reading by Wilson, legal determinism is no longer popular in American legal
    culture.


46. True or False. According to your instructor, sociological jurisprudence should be considered as a more
    sophisticated form of "natural law," at least according to the way of talking announced in class.




47. True or False: According to your instructor, the Brandeis brief was one of the first uses of “sociological
    jurisprudence” in American legal culture, even though the justices in the case decided not to rely upon its
    empirical data when crafting the legal opinion.




48. According to your instructor, analytic positivism claimed that old-school originalism had a central flaw in its
ENTIRE APPROACH to finding meaning in law. The flaw was not a factual problem – it was not that certain
facts or evidence couldn’t be found. It was that, even if you could find everything that old-school originalism
wanted, the approach would yield irrelevant information. And this was because …
           A. you can never know the political assembly’s true intention, because it is multi-membered and
           politicized (vote trading, attachments, etc).

           B. intentions are not “the law;” only the words that pass the democratic ritual are “the law.” Intentions
           are only what speakers WANTED to be law. And that does not count.

           C. the semantic culture in 1787 spoke a form of old English, which is not directly importable today.
           Therefore, many of the concepts that post-colonial Americans refer to are in need of being translated
           into modern understandings if the Constitution is to make any reasonable sense.

           D. The intention of the framers was to set forth a broad plan of general government that would be
           interpreted and expounded by political generations as history took its course, not to lock in a specific
           policy program that could never change.

49. According to your professor, “old originalism” was:

           A. consulting the sacred traditions to pronounce “the law”

           B. purporting to find and follow the intention of the assembly

           C. interpreting words in accordance with the larger language culture that spoke them

           D. to follow precedent and never deviate from it

50. According to your professor, the “new originalism” is the idea that:

           A. judges should follow assembly intent

           B. judges should follow precedent and never to deviate from it

           C. judges should make good social policy

           D. judges should read words the way that the semantic culture would have when the words were
           originally enacted



51. According to your professor, one of the central flaws in the new originalism is that:

           A. it is impossible for a multi-member assembly to have a singular intent. Hence, speaker’s meaning
           cannot be used;

           B. For every canon of construction, there is a counter-canon;

           C. The great majority of words in the Constitution are of a family-resemblance sort and that whatever
           the original generation thought of them are only EXAMPLES of their meaning. This means that other
           examples are possible.

           D. It deploys the equal-opposites fallacy, saying, in essence, that if a word has an antonym, it cannot
           be purposely used.

52.

      A.
53. According to your professor’s lecture, the case of “Holy Trinity” involved a church that was prosecuted for
hiring an English pastor in violation of a statute that outlawed “assisting the migration of one [from another
country] to perform labor [in this country].” This case was presented to you to explain:

        A. the problems of originalism

        B. The problems of positivism

        C. The canon, “the exclusion of one thing implies the exclusion of the other”

        D. The social purpose rule



54. When discussing canons of construction, your professor noted that there were two kinds: those that
purported to be rules of reading; and those that were designed for “good social policy.” Examples of the latter
kinds include:

        A. A word is known by its company;

        B. The strict construction rule, which means, e.g., that criminal statutes must be strictly construed
        against the state;

        C. “in para materia”

        D. negative implication



55. According to your professor, one of the skeptical arguments you were exposed to was the “fundamental
contradiction.” Your professor called this the “Duncan Kennedy fallacy.” He said it was a fallacy because:

        A. meaning is use, and many uses involve family resemblance;

        B. if experience is an hallucination, you still have to live within it and avoid “wrong answers” in the
        dream (hallucination)

        C. It is a contradiction to assert that contradiction is everywhere

        D. It claimed that only polar opposites could exist, not “blends.” It also seemed to claim that if a word
        had an antonym, it couldn’t be purposely deployed.

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:87
posted:3/5/2011
language:English
pages:9