E-Law Exam 1
Superfund
Comprehensive Environmental Response, Compensation & Liability Act (1980); the OPA (Oil Pollution Act) was added in 1990
Sierra Club v Morton
controversy: putting highway and powerline through national forest. Established a wide definition of standing.
resource orientation: which two opposing viewpoints are there surrounding this concept?
unlimited exploitation V wise use
protection orientation: which two opposing viewpoints are there surrounding this concept?
conservation V preservation
“nature endangered” vs “preservation of unique value”
rights orientation: which two opposing viewpoints are there surrounding this concept?
attribution of rights to animals V to ecosystems
holistic orientation: what is this?
The concept of “deep ocology” is a way to look at nature; understand how everything works together
What are the 4 categories of opposing views of the environment are there?
resource, protection, rights, holistic
what is the precautionary principle as related to policy-making in environmental agencies?
don’t make any intractable decisions!
punitive damages as related to compensatory damages?
compensatory damages are much more common than punitive damages, perhaps because the value is more easily assigned to the damages
injunction
court order preventing defendant from engaging in a certain activity
What are the sources of law (7 kinds)?
constitutional, treaties, state & fed statutes, ordinance, administrative, common
What are the three levels of courts?
inferior (limited jurisdiction, ex: small claims courts), trial courts (majority! state facts and apply law), appellate courts (hear appeals from trial courts)
What are the 4 kinds of jurisdiction and what do they mean?
subject matter j
in personam j (defendant is state res)
in rem j (property involved is in-state)
long-arm statute (court decides it has j)
What are the two most important cases in which federal courts have jurisdiction?
Federal Question Jurisdiction (case involves substantial fed. question)
Diversity Jurisdiction (dispute is between residents of different states and amount in question -damages- are more than $75000)
What kinds of cases can the Supreme Court hear?
2+ states dispute OR fed govt/state govt dispute
writ of centiorari
supreme court does not have to hear cases but chooses to
centoirari jurisdiction
this exists in cases where:
-a person challenges validity of treaty or federal statute
-person alleges that state statute conflicts w/federal law
-person claims right/privilege/immunity under federal law
What are the THREE thresholds that must be met before litigation can proceed?
Standing- legal right to press a claim
Case or Controversy?- there must be a live dispute over an enforcable law
Ripe?- Injury must be imminent
What is enabling legislation?
statutes created by an agency
delegation doctrine
Courts use this to examine he question of whether legislative or executive branches have clear power to create the statutes and legislation that they do
Administrative Procedure Act
1946, establishes basic framework of agency action: minimum procedure requirements for rule-making and adjucation
Why is rule-making preferable to adjucation?
rule-making is prospective rather than retrospective
What are the three procedures for rule-making under the APA?
Formal- oral hearing, etc
Informal- “notice and comment”
Hybrid- formal + informal
Why is the Chevron USA Inc vs Natural Resources Defense Council case significant?
It established that the courts must respect agency decisions on decisions they are explicitly allowed to decide.
What are the three basic powers of federal agencies?
1) make rules
2) adjucation (case-by-case decision making)
3) investigatory procedures (searches, etc)
What are 4 ways in which agencies can have their power checked?
1) budget cut from higher up
2) judicial review
3) constitutional review
4) congressional assessment
public trust doctrine
recognizes public’s interest in common property
What is joint tenancy characterized by?
The right of survivorship
What are the REQUIRED ELEMENTS for adverse possession?
1) hostile!
2) actual possession
3) open and notorious
4) continuous
5) exclusive
fee simple absolute = ?
ownership interest
fee simple defeasible =
conditional fee; title w/conditions
a fee simple defeasible with a right to reverter means
the original owner can regain the title to the property if you break the rules within your title
the remainder man has…
the right to revert interest in the land
life estate interest
use of land for life, after death ownership rights revert to original owner
waste (context of prop rights)
someone with conditional fee fundamentally changes the character of the land
What’s the difference between tenancy in common and joint tenancy?
tenancy in common is 2 ppl with undivided interest
joint tenancy only exists for married couples: they are one entity
Community Property Statute
only in 9 states; anything given to one member of married couple is property of both
trespass tort vs nuisance tort
person interferes w/owner’s property vs person interferest w/quiet use of one’s land
Which proof is difficult to find in a negligence claim?
causation
Elements of Negligence (5)
1) duty of care is ignored
2) activity breaches reasonably prudent person’s standard
3) there must be actual causation
4) Proximate causation: no unforseen, intervening events
5) Injury
Defenses to Negligence
1) assumption of risk
2) contributory negligence
3) comparative fault (fault divided unevenly between parties)
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