2. Chapter #3 Chapter #3 The Law In Action

3. Why do we have laws? Maintain Order: to prevent harm by imposing certain rules on all people and to add to a sense of predictability to business transactions. Maintain Order: to prevent harm by imposing certain rules on all people and to add to a sense of predictability to business transactions. Resolve Disputes: to resolve conflicts that inevitably will arise. Resolve Disputes: to resolve conflicts that inevitably will arise. Safeguard Predominate Values: Majority of Americans have a collective “value” system and our laws protect and encourage these “values” or social norms. Guarantees “Rule of Law” Laws preserve fundamental freedoms and ‘due process’ which we as Americans deem worthy of our highest regards! The ability to change is an important test of a legal system to accommodate our changing society. (right to die, cloning, internet)

4. Justice Cardozo’s Eclecticism Schools of Jurisprudential Thought Natural Law Perspective Historical Perspective Analytical Perspective Sociological Perspective Deterministic Jurisprudence Political Jurisprudence Realist- Behavioralist Tradition of Law

5. Sources of our law Legislative: Laws can be found in our constitutions, statutes, and regulatory rules are enacted in some way. –Pro---voice of the people, reflect society’s values, able to vote the “rascals” out if they pass offensive laws, avenue of the public to participate in the law making. –Con--what about the minority’s rights? Or prejudice by the majority?, corruption of the legislature, partisan politics, Case Law: Courts are also a source of laws following the “stare decisis” principle & common law (ad-hoc basis). Or courts can use the process called judicial activism to make new laws. –Pro--Independent judiciary, able to act when legislature can not, protect the minority rights. –Con--Not necessarily voted in by the people, corruption, slow moving, costly system

6. Conditions for Judicial Review 1.The case must be ripe for review. 2.The petitioner must have exhausted all administrative remedies. 3.The decision of the administrative agency must be final before judicial review can be sought.  Final Order Rule

7. Standards of Judicial Review of Administrative Agency Decisions Questions of Law Questions of Fact

8. Questions of Law w If the administrative agency has decided a question of law the reviewing court is free to substitute its own judgment for that of the administrative agency. e.g., interpretation of statutory language

9. Questions of Fact w Questions of fact are not easily overturned. w Reviewing court usually defers to the agency’s fact-finding. w APA specified standards for review of fact- finding: The arbitrary, capricious abuse of process test. The substantial evidence test. The unwarranted by the facts test.

10. Procedural Due Process Due process that requires the respondent to be given: 1.Proper and timely notice of the allegations or charges against him or her, and 2.An opportunity to present evidence on the matter.

11. Substantive Due Process w Due process that requires that the statute or rule that the respondent is charged with violating be clearly stated.

12. An Example of Judicial Made Law w The famous case Goldberg v. Kelly is a demonstration of how courts “make” new law and rationalize their decision through a formal written opinion. This “making” of a new law can come from interpreting statutes’/rules’ meaning and then enforcing the “public policy” of the statute or rule or it could be a case of “first impression”. w Compare with the later case Mathews v. Eldridge—why do these cases have different results when they are similar? How can a court justify such divergent opinions?

13. JUDGE JUDY READY TO RULE---- Case: GOLDBERG v. KELLY & MATHEWS v. ELDRIDGE-- Administrative agencies cut off government benefits (welfare in Goldberg And social security benefits in Mathews) w/o holding an administrative Formal Hearing b/f ending benefits (but did allow post termination hearing) DUE PROCESS Violated in Goldberg b/c no substitute Income and NOT violated In Mathews b/c of other Available benefits However, hearings Must be given Eventually by agency