BLFf8FinalExam_A - LAWS 3930 Fall 2008 1. T Comprehensive...

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LAWS 3930 Fall 2008 Comprehensive Final Exam Page 1 of 13 1. T F The law favors the objective over the subjective. Both the law and economics seek transactions that are both knowing and voluntary ( e.g., Assumption of the Risk ). The law recognizes three levels of knowing: subjective actual knowledge and objective knowledge in the forms of receipt of notice and reason to know. 2. T F The objective can be either express ( i.e., words: oral or written ) or implied ( i.e., acts, words, and/or circumstances ). For example, the express Article VI, paragraph 2 Supremacy Clause is implemented by the Preemption Doctrine that recognizes both implied and express mechanisms for USA federal preemption of the USA States' authority. That is, preemption is not favored, but may be allowed if: (1) clear intent of Congress and national interests outweigh State interests ( e.g., dormant Commerce Clause ); or (2) express intent of Congress and a need for uniformity. Expressly, the USA federal government has preempted the USA States with respect to arbitration contracts in commerce ( but not mere arbitration agreements ) and electronic signatures in commerce ( but not USA State's Act of State [ e.g., definition of what is a signature on a will ]). 3. T F In the USA the separation of powers takes several forms, the most important form is Individual versus government. In the relationship between an Individual and government, the government always owes every person due process of law. In the separation of powers between the legislative, executive, and judicial branches of government the power of Judicial Review is an implied power. Substantive due process obligates the judiciary to actively provide protection of fundamental constitutional rights ( e.g., privacy ). Most frequently, however, procedural due process ( i.e., notice and hearing, both proportional to the interests involved ) is all that the courts will require government to provide Individuals as protection against governmental action. The implied fundamental constitutional right to privacy
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LAWS 3930 Fall 2008 Comprehensive Final Exam Page 2 of 13 springs from the interaction of the USA Constitution's Amendment IX ( enumeration does not disparage ) and Amendment X ( powers not granted nor denied are reserved ) which support the implication of privacy as a penumbra and/or an emanation of the USA Constitution's Amendments I ( religion, speech, press, assembly, petition government ); II ( bear arms ); III ( quarter solders ); IV ( search and seizure ); V ( incriminate self; life, liberty, and property ); VI ( public trial, advice of counsel ); and VII ( jury trial ). Very importantly, in the USA the implied constitutional right to privacy only exists between Individual and government; whereas, the European Union’s express constitutional right to privacy exists between both between Individuals and governments as well as between all Individuals. 4. T
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This note was uploaded on 01/12/2010 for the course ECON 1a taught by Professor Ohara during the Fall '07 term at San Jose State.

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BLFf8FinalExam_A - LAWS 3930 Fall 2008 1. T Comprehensive...

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