Question 1
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 |
Question 2
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 |
Question 3
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 |
Question 4
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 |
Question 5
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 |
Question 6
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 |
Question 7
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 |
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Question 8
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 |
Question 9
In addition to defendant’s mens rea (mental intent), actus reus (commission of the deed accused), the prosecutor must also prove
| that the evidence against the defendant is not merely circumstantial | ||
| that the act committed is a crime or offense punishable under a non-retroactive criminal statute | ||
| that the defendant possessed the motive, means and opportunity to commit the crime |
Question 10
In a criminal prosecution, the defendant may enter a plea to the charges against him at a hearing known as
| the initial appearance | ||
| the preliminary hearing | ||
| the arraignment |
Question 11
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 |
Question 12
In People v Dlugash (1977), the New York Court of Appeals overruled the Appellate Division because, where the evidence is not sufficient to sustain a finding of murder but only attempted murder, the court should modify the murder charge to attempted murder if there is sufficient evidence tha
| the defendant believed he was killing the victim | ||
| the defendant did not believe he was killing the victim | ||
| the killing was committed in the course of the commission of a felony |
Question 13
Sanford Kadish finds fault with philosophical defenses of the doctrine that attempts should be punishable with only half the severity of completed offenses because
| the goal of criminal justice is to restore some unjust advantage that was seized by the offender | ||
| the amount of punishment should depend on the culpability of the defendant in acting and not on chance | ||
| there is no more unfairness in leaving punishment to chance than in a lottery where all are treated alike |
Question 14
In California, the test of the defense of insanity, deriving from Queen v. M’Naughton (1843), is predicated on
| sufficient evidence of premeditation and deliberation | ||
| sufficiency of mental capacity and knowledge of wrongfulness or appreciation of the degree of the harm | ||
| expert testimony of physicians and surgeons |
Question 15
Absent a police interrogation, the sixth-amendment right to counsel begins and may be invoked at the time of
| becoming aware that one has become the focus of an investigation | ||
| formal notice of pending charges at the initial appearance before a magistrate | ||
| arrest or detention, though the police and the defendant have otherwise remained silent |
Question 16
When “harmless error review” is conducted by an appellate court on review of alleged constitutional error (violation of defendant’s due process) on the trial, any constitutional error in the trial court’s judgment (such as admission of a coerced confession, or consideration by the sentencing jury in a capital punishment case of constitutionally invalid eligibility factors)
| the defendant must prove that the error was not harmless beyond reasonable doubt | ||
| the reviewing court will reweigh the evidence that was before the jury on the trial, if facts were considered by the jury that would not have been considered absent the constitutional error | ||
| the reviewing court will consider whether there is sufficient evidence in the record of the evidence before the jury on the trial to support the trial court’s judgment |
Question 17
The “Furman requirement” in capital punishment cases, refers to a procedural safeguard requiring that in order for the sentencing jury to render the death penalty, the jury must find to be true at least one statutorily specified special circumstance of the capital offense (first degree murder) committed and then
| if the state is a “non-weighing state,” decide whether to impose the death sentence by weighing only the statutorily specified eligibility factors as against all mitigating factors that exist | ||
| if the state is a “non-weighing state,” decide whether to impose the death sentence by considering the statutorily specified eligibility factors and any other available aggravating factors | ||
| if the state is a “weighing sate,” decide whether to impose the death sentence by weighing the statutorily specified eligibility factors and any other available aggravating factors as against all mitigating factors that exist |
Question 18
Under the common law, unless some new act breaks the chain of natural causes and effects,
| a defendant is liable for all the consequences flowing naturally from the initial circumstances of his act, be his act voluntary or not | ||
| a defendant is liable for all the consequences flowing naturally from the initial circumstances of his act, be his act negligent or not | ||
| a defendant is liable for all the consequences flowing naturally from the initial circumstances of his act, if the act was voluntary or negligent |
Question 19
Applying Benjamin Cardozo’s “radius of danger” rule from Palsgraf v Long Island Rail Road, an injured driver who crashes into a utility pole as a result of being distracted by another driver that happened to be driving on a pedestrian sidewalk owned by the defendant,
| would be within the class of persons whose injuries were proximately caused by the defendant | ||
| would be within the class of persons who could be expected to be put at risk of injury by the defendant | ||
| would not be within the class of persons who could be expected to be put at risk of injury by the defendant |
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Question 20
In the causal hypothesis that “but for the rain, you would not have crashed your car,”
| the rain is not morally or legally culpable but still constitutes a cause or condition | ||
| the rain must be a proximate cause of the accident | ||
| the rain may be close enough to a harm in a chain of events to be a legally culpable cause of the harm |
Question 21
An intervening cause (occurring in time between the original act and the harm) must be independent of the original act, and it must be
| some foreseeable human act or natural event | ||
| either some voluntary human act or an abnormal natural event | ||
| some foreseeable human act but not an abnormal natural event |
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Question 22
In cases where strict liability applies, the defendant’s actual awareness of having created the risks of a plaintiff’s injuries is immaterial to his liability
| if the injuries were proximately caused by the defendant’s negligent action | ||
| if the injuries were an unforeseeable consequence of the defendant’s negligent action | ||
| unless another defendant’s negligent action intervened in the chain of natural causes and effects |
Question 23
In Derdiarian v Felix Contracting, where Felix argued that the plaintiff’s injuries were due a freakish accident brought about solely by an epileptic driver who had negligently failed to take his medication, contending that Felix should be relieved of liability as a matter of law, the Court ruled that where acts of a third person intervene between a defendant contractor’s conduct and a plaintiff’s injury, the defendant’s liability turns on whether the intervening act
| was an independent and superseding cause of the plaintiff’s injuries | ||
| was a foreseeable consequence of the situation created by the contractor | ||
| was a proximate cause of the plaintiff’s injuries |
Question 24
In the 1994 Illinois appellate court case Quirke v City of Harvey, the court ruled that
| the city was negligent as a matter of law for the inoperability of traffic lights in the proximity of the accident | ||
| the darkened streets and inoperative traffic lights were not causes or conditions of the accident | ||
| it was not reasonably foreseeable that the drivers violate a statutory duty to treat an inoperative traffic light as a stop sign before entering an intersection |
Question 25
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 Tatiana. The superior (trial) court dismissed the action for failure to state a claim, since the pleadings alleged that the therapists requested 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 |
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Question 26
In Tarasoff, 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 | ||
| a special relation, as existing in this case, 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 |
Question 27
The reply to semantic originalists who, following Antonin Scalia, think that judicial interpretation of the intent of the framers of the constitution, or of lawmaking assemblies, should be in accordance with what the drafters of the statutory language actually meant by using such language, is that future judges must protect abstractly worded rights in some cases contrary to the expectations of the lawmakers
| since the drafters should have expected that future generations might regard these rights with different degrees of importance than they themselves did | ||
| since future judges were given the authority to interpret these rights contrary to the intent of the drafters of the statutory language | ||
| since the language of the Constitution, as also of the laws, should be construed as against the drafters, committing them to the protection of these rights under evolving standards of decency that mark the progress of a maturing society |
Question 28
The Supreme Court has held that some rights are so fundamental, such as our explicit First Amendment rights, that any law restricting such a fundamental right must both serve a compelling state interest, and the restriction of liberty imposed by such a law
| be rationally related to achieving such governmental interest | ||
| be narrowly tailored to achieving that governmental interest | ||
| not be such as to impose undue burdens on citizens standing to be affected by the law |
Question 29
In judicial review of challenges to the constitutionality of a law on the grounds of an alleged violation of the Due Process clause, the rational basis standard of review tests whether the restriction of liberty imposed by the law
| imposes undue burdens on citizens whose interests are not served by the law | ||
| is rationally related to achieving such a legitimate governmental interest | ||
| is the least restrictive means in achieving the legitimate purpose that the statute was enacted to serve |
Question 30
In Brown v Entertainment Merchants Association (2011), the Court ruled that that a California statute banning the sale of violent video games to minors under 18 years of age was “overbroad” because, in relation to the asserted governmental interest justifying the ban, the statute restricted merchants of violent video games from selling them to minors
| whose parents or guardians regarded such videos, as the state deemed they should, inappropriate for the child | ||
| whose parents or guardians did not regard such videos inappropriate for the child | ||
| despite the existence of a broad class of content creators, critics and merchants that did not regard violent video games inappropriate for the child |
Question 31
In determining the biological point of emergent “fetal viability” as marking the limit of a pregnant woman’s right to privacy as offsetting a countervailing right of the government to protect such potential fetal life, the U.S. Supreme Court’s 1973 landmark decision in Roe v. Wade (as upheld in 1992, somewhat modified, in Planned Parenthood of S.E. Pennsylvania v. Casey) ruled that
| the interim point at which the fetus becomes ‘viable’ marks the earliest point at which the State’s interest in protecting fetal life can outweigh the pregnant woman’s interest in procreative liberty | ||
| before the interim point at which the fetus becomes ‘viable’, the State’s interest in protecting potentual fetal life cannot outweigh the pregnant woman’s interest in procreative liberty | ||
| throughout pregnancy, the State, in promoting its interest in the health of the mother, may regulate the abortion procedure in ways that are reasonably related to maternal health, and may take measures designed to advance this interest so long as their purpose is to persuade the woman to choose childbirth over abortion |
Question 32
Roe v Wade (1973) extended the substantive right of privacy to permit the state regulation of elective abortions (prior to the viability of the fetus near the end of the second trimester), and Lawrence v Texas (2003) extended it further to forms of intimate conduct integral to choice-of-lifestyle, rulings which protect
| the fundamental constitutional right to such privacy | ||
| the due process liberty interest in such privacy | ||
| the legitimate state interest in regulating such privacy |
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