Environmental Engineering Chapter 4 Gun Control Act Pose Only Limited Threats

Chapter 4

COMMON LAW, STATUTORY LAW,

AND ADMINISTRATIVE LAW

1

Suggested Assignments

Evolution of the Common Law

Ask students to summarize the common law principles of the bystander cases in the text and then create

their own bystander examples. First, students should write a two- or three-sentence summary of the law

Research: Legislative Process

Have students find a newspaper article on a bill that is working its way through Congress. They should

Research: Campaign Finance

Have students research campaign contributions made in a recent U.S. House or Senate campaign.

Agency Law

Students should write one-paragraph descriptions of three federal or state agency regulatory programs that

Research: Regulated Industries

Ask students to identify what industry they intend to enter upon graduation. For example, banking,

financial planning, accounting, insurance, advertising, etc. Then ask students to research the various

federal and state regulations that apply to that industry and report back to the class.

Chapter Overview

Chapter Theme

Law is complex. Law can become less baffling if we understand the different types of law and how each

type is made.

Quote of the Day

2 Unit 1 The Legal Environment

Common Law

Stare Decisis

Ask students to explain why law must both ensure predictable results and adapt to changes in social

mores, and to explain the role of precedent, stare decisis, and judicial interpretation in achieving these

contrary goals. This theme appears in other places in the text, such as the Contracts unit discussion of

Freedom of Contract and Fairness of Contract.

Bystander Rule

Historically, the common law has required no action at all from those who witness a person in distress.

The bystander has been free to walk away laughing, if he wished. The text describes some of the few

exceptions that have crept into the law.

Question: Is the bystander rule immoral? What are the differences between law and morality?

Answer: Law clearly differs from morality. Anytime the two strongly diverge, it is worth close

Statutory Duty to Provide Assistance

Vermont is one of the few states to have a statute that requires a bystander to become involved in an

emergency. 12 V.S.A. §519 states:

(a) A person who knows that another is exposed to grave physical harm shall, to the extent that the

same can be rendered without danger or peril to himself or without interference with important duties

owed to others, give reasonable assistance to the exposed person unless that assistance or care is

being provided by others.

(b) A person who provides reasonable assistance in compliance with subsection (a) of this section

shall not be liable in civil damages unless his acts constitute gross negligence or unless he will receive

or expects to receive remuneration. Nothing contained in this subsection shall alter existing law with

respect to tort liability of a practitioner of the healing arts for acts committed in the ordinary course of

his practice.

(c) A person who willfully violates subsection (a) of this section shall be fined not more than

$100.00.

Question: One of the reasons the common law of most states has not forced a bystander to render aid

has been the fear that a bystander would do an imperfect job and subject himself to negligence

liability. How has the Vermont legislature attempted to deal with that problem?

Answer: The statue provides, in subsection (b), that a volunteer providing reasonable assistance shall

Chapter 4 Common Law, Statutory Law, and Administrative Law 3

care.

Case: Tarasoff v. Regents of the University of California

2

Facts: Prosenjit Poddar killed Tatiana Tarasoff. Tatiana’s parents claimed that two months earlier

Poddar had confided his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist employed by the

University of California at Berkeley. They sued the university, claiming that Dr. Moore should have

warned Tatiana and/or should have arranged for Poddar’s confinement.

Issue: Did Dr. Moore have a duty to Tatiana Tarasoff? If so, did he breach that duty?

Holding: The defendants are potentially liable. Once a therapist does determine, or under applicable

professional standards reasonably should have determined, that a patient poses a serious danger of

violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that

danger.

Question: After the Tarasoff case, do people generally have a duty to come to the aid of someone in

danger?

Question: What is the exception that this decision creates?

Question: Therapists hear patients’ anger all day long. How can a therapist know for sure whether a

patient is serious in making a threat?

Answer: The therapist need not do a perfect job. He must analyze a patient the way a reasonable

Question: Poddar was Dr. Moore’s patient. Did the doctor-patient privilege protect his

conversations with Dr. Moore?

Answer: As a general rule, the doctor-patient privilege would protect such conversations. That

Additional Case: Hardingham v. United Counseling Service of Bennington County, Inc.

4

Hardingham was a recovering alcoholic. Defendant United Counseling Service (UCS) gave him a job as

an emergency services counselor. Halpin, UCS’s executive director, learned that Hardingham was again

drinking. Halpin and other UCS employees went to Hardingham’s home, where they found him

inebriated. They saw him attempt to drink from a bottle apparently filled with windshield wiper fluid.

They took the bottle away and took Hardingham to the local emergency room. Hardingham refused to

take a blood test and the UCS employees neglected to tell the hospital that he had evidently been drinking

wiper fluid. Because Hardingham refused to cooperate with hospital employees, the police took him to a

correctional center. Overnight, Hardingham suffered severe distress and the police returned him to the

4 Unit 1 The Legal Environment

Question: Did the defendants’ conduct constitute ordinary negligence, meaning they are not liable

under §519(b), or gross negligence, meaning they are liable?

Answer: The court found that the defendants’ omission to tell the hospital about the windshield wiper

fluid was not gross negligence. Gross negligence “amounts to a failure to exercise even a slight

The dissent pointed out:

The facts here are particularly telling. Defendants obtained emergency medical assistance

and accompanied plaintiff to the emergency room, but failed to tell the emergency room

The dissent concluded that the purpose of the statute had been to force people to respond in an

emergency and to do a reasonable job, and that it should have been up to a jury to decide whether

these defendants behaved reasonably.

Question: Had his rescuers spent a few moments advising emergency room personnel that

Hardingham had drunk windshield washer fluid, they might have saved him from blindness and other

serious injuries. Why doesn’t the court hold them liable for their failure to perform such a simple act?

in distress is only liable if he commits gross negligence.

Question: Is this gross negligence?

Answer: The majority of the Vermont Supreme Court ruled that no reasonable juror could find this

Additional Case: Pehle v Farm Bureau Life Insurance Company, Inc.

5

Facts: When they applied for life insurance from Farm Bureau Life Insurance Company (“Farm

Bureau”) in 1999 Wyoming resident Gary Pehle and his wife Renna did not know they were infected with

the Human Immunodeficiency Virus (“HIV”). Farm Bureau collected the initial premium and arranged

for the Pehles to obtain blood tests as part of the application process. Farm Bureau forwarded the blood

samples for analysis to LabOne, an independent laboratory, which reported the Pehle’s HIV status to the

insurance company. Farm Bureau then rejected the Pehle’s application and advised them that it would

Chapter 4 Common Law, Statutory Law, and Administrative Law 5

disclose the reason for their rejection to their physician if they desired. The Pehle’s did not follow up to

learn the reason for the rejection.

Two years later Renna Pehle was diagnosed with AIDS. They looked into their medical records and

Issue: Did Farm Bureau, LabOne, and Dr. Lowden have a duty to notify the Pehles of their HIV-positive

status?

Holding: The Circuit Court of Appeals affirmed the trial court’s grant of summary judgment in favor of

LabOne and Dr. Lowden and reversed its judgment in favor of Farm Bureau, concluding “that if an

insurance company, through independent investigation by it or a third party for purposes of determining

policy eligibility, discovers that an applicant is infected with HIV, the company has a duty to disclose to

the applicant information sufficient to cause a reasonable applicant to inquire further.” The Pehle’s

By encouraging the Pehles to purchase life insurance through them, Farm Bureau purported to act

with the Pehles’ best interests in mind. In submitting to a procedure for extraction and consenting to

an examination of their blood, the Pehles demonstrated that Farm Bureau had gained their confidence.

We do not think that insurance companies must exist to treat or diagnose HIV in order for a duty to

arise that necessitates that applicants be properly put on notice to inquire further.

Because there was a genuine issue of material fact as to whether Farm Bureau disclosed to the Pehles

“information sufficient to cause a reasonable applicant to inquire further” the trial court incorrectly

granted summary judgment in favor of Farm Bureau.

Question: What is summary judgment?

Question: Why did Farm Bureau distinguish between misfeasance—acting wrongfully—and

nonfeasance—failing to act?

Answer: Farm Bureau characterized its failure to notify the Pehles as nonfeasance and said it was

Question: Did the court agree?

Question: It appears that the Pehles never asked Farm Bureau why it rejected their application. If

they had shown the slightest curiosity about the reason isn’t it likely that they would have learned

then of their HIV status?

6 Unit 1 The Legal Environment

Answer: Perhaps. The court cannot speculate on what might have happened. At trial, the court

Question: This case involves a federal court applying Wyoming law and ruling on a question that the

Wyoming Supreme Court has not considered. Is that appropriate?

Answer: The dissenting judge did not think so. He believed the court should have certified this

Question: Doesn’t this case create a troubling precedent for life insurance companies? How can

they know which medical conditions uncovered during blood work will impose on the company a

duty to notify the applicant?

Question: But couldn’t a future plaintiff use this case as precedent if an insurance company failed to

notify the plaintiff that it discovered some other serious disease during a blood test?

Answer: A future plaintiff in such a case would undoubtedly rely on this case as precedent but the

Statutory Law

Bills

The websites that follow provide additional background:

• How Our Laws are Made at http://thomas.loc.gov/home/lawsmade.toc.html

• Legislative Branch Resources at http://www.gpoaccess.gov/legislative.html

• Congressional Committees and the Legislative Process at

http://edsitement.neh.gov/view_lesson_plan.asp?id=284

• U.S Government Documents The Legislative Process at

http://www.columbia.edu/cu/lweb/indiv/usgd/legproc.html

Question: What is a bill?

Question: Why are the floors of the House and Senate nearly deserted so much of the time?

Answer: Because most congressional work is done in committees.

Question: Why does Congress do so much of its work in committees?

Answer: Governing the nation is enormously complex business. Like any large organization,

Question: What goes on in a committee?

Answer: Committees investigate the need for new legislation, hold hearings, hear testimony from

Question: How is a House-Senate conference committee different from other committees?

Answer: This special committee exists for only one purpose: to reach a compromise on different

Chapter 4 Common Law, Statutory Law, and Administrative Law 7

Landmark Case: Griggs v. Duke Power Co.

6

Facts: Duke Power used a high school completion requirement and an intelligence test in hiring and

Issue: Does Title VII proscribe tests that are neutral on their face but perpetuate discrimination?

Holding: Title VII does proscribe such tests. The Act proscribes not only overt discrimination but also

practices that are fair in form but discriminatory in operation. The touchstone is business necessity. If an

employment practice excludes minorities it is prohibited unless it can be shown to relate to job

performance.

Question: What is the important issue that the Griggs case resolved?

Question: May such a law violate Title VII?

Question: Why did the court rule as it did?

Administrative Law

This section discusses the legal framework within which agencies are created. It explains the distinction

between executive and independent agencies, enabling legislation, the Administrative Procedure Act, and

Congress creates federal administrative agencies with enabling legislation. The Administrative Procedure

Act controls how agencies do their work.

Rulemaking

Investigation

Agencies have broad investigatory powers and may use subpoenas and, in some cases, warrantless

Adjudication

Ubiquitous Agencies

It is ironic that the effect on our lives of administrative regulations is so pervasive, yet the process by

which administrative agencies create their regulations is rarely before us. What was the last movie or

401 U.S. 424, 91 S. Ct. 849, 1971 U.S. LEXIS 134 United States Supreme Court, 1971

8 Unit 1 The Legal Environment

Landmark Case: United States v. Biswell

7

Facts: Biswell operated a pawn shop and had a license to sell “sporting weapons”. Treasury agents

demanded to inspect Biswell’s locked storeroom. The officials claimed that, the Gun Control Act of

1968 gave them the right to search without a warrant.

Biswell voluntarily opened the storeroom, and the agent found two sawed-off rifles inside. The

guns did not remotely meet the definition of “sporting weapons,” and Biswell was convicted on

firearms charges.

The appellate court found that, because the search violated the Fourth Amendment, the rifles

could not be admitted as evidence. It reversed the conviction, and the government appealed to the

Supreme Court.

Issue: Did the agent’s warrantless search violate the Constitution?

Excerpts from Justice White’s Decision: When the officers asked to inspect respondent’s locked

storeroom, they were merely asserting their statutory right, and respondent was on notice as to their

Federal regulation of the interstate traffic in firearms is undeniably of central importance to

federal efforts to prevent violent crime. Large interests are at stake, and inspection is a crucial part of

the regulatory scheme.

Here, if inspection is to be effective and serve as a credible deterrent, unannounced, even

frequent, inspections are essential. In this context, the prerequisite of a warrant could easily frustrate

inspection; and if the necessary flexibility as to time, scope, and frequency is to be preserved, the

protections afforded by a warrant would be negligible.

It is also plain that inspections for compliance with the Gun Control Act pose only limited threats

to the dealer’s justifiable expectations of privacy. When a dealer chooses to engage in this pervasively

Question: Why should this case be evaluated under the Power of Agencies?

Answer: Both because it’s a retail operation, governed by the Treasury, and because it is a

7

406 U.S. 311, SUPREME COURT OF THE UNITED STATES (1972)

Chapter 4 Common Law, Statutory Law, and Administrative Law 9

Question: Should a Treasury agent be allowed to conduct a surprise search? Why or why not?

notification of a search would give a business owner to hide any evidence of wrongdoing.

Question: Did the agent’s warrantless search violate the Constitution??

Additional Case: Doe v. Maryland Board of Social Works

8

Facts: “Mrs. F” was a licensed social worker in Maryland. One of her clients, “John Doe,” was

convicted of child abuse and sex offenses involving his minor granddaughter. The Board of Social Work

Issue: Was the subpoena valid?

Holding: Validity of subpoena affirmed. It wrote:

A state statute affords social workers and their clients similar protections that have long been

applicable to other relationships where privacy issues and the need for open communication are of

paramount importance, e.g., marital privilege, attorney—client privilege, psychiatrist/psychologist—

patient privilege, clergyman—communicant privilege, etc. We consider the information contained in

those treatment records to be both confidential and privileged. Therefore, we must examine the

Neither the social worker—client privilege nor any claim concerning petitioners’ constitutional right

to privacy automatically prevents the Board from subpoenaing petitioners’ treatment records. While

the Board is required by law to protect the petitioners’ treatment records from further disclosure, the

Board must be allowed to have access to those treatment records in order to fulfill its statutory

mandate to protect the public by conducting a full investigation and, where appropriate, disciplining

those licensed social workers who are found to be in violation of the [law].

Question: Did the Does move to quash the subpoena only because they sought to block the

investigation?

Question: If those communications were confidential, than why may the Board of Social Work

abrogate the Does’ privilege?

Answer: The Board must balance competing interests. It must balance the policies served by the

8

384 Md.161, 862 A.2d 996 Maryland Court of Appeals, 2004

10 Unit 1 The Legal Environment

Question: What facts support abrogating the privilege in this case?

Answer: Mrs. F, the Does’ social worker, may have violated her legal duty to report Mr. Doe’s

F’s records of her treatment sessions with the Does.

General Question: If in reviewing the records the Board discovered evidence that the Does had

committed other crimes, could the Board act on its knowledge?

Limits on Agency Power

The four most important limitations on the power of federal agencies are statutory control in the enabling

legislation and the APA; political control by Congress and the president; judicial review; and the

informational control created by the Freedom of Information Act and the Privacy Act. Students should

understand that control can often be affected by means other than lawsuits and legislation. Students

should pay particular attention to the amount of deference courts employ in reviewing administrative

decisions, which is discussed in the text.

Case: Fox Television Stations, Inc. v. Federal Communications Commission

9

Facts: “People have been telling me I’m on the way out every year, right? So f*** ’em,” said Cher, on a

televised Billboard Music Awards ceremony. A year later, on the same program, Nicole Richie asked,

“Have you ever tried to get cow s*** out of a Prada purse? It’s not so f****** simple.” The Federal

Communications Commission (FCC), which regulates the broadcast industry, received complaints about

this and other profanity on the airwaves.

The FCC declared that these words were invariably indecent, explicit and shocking. Their utterance

occasional use of profanity?

Excerpts from Judge Pooler’s Decision: In 2001, in an attempt to provide guidance to the broadcast

industry regarding enforcement policies the FCC issued a statement in which it explained that an

indecency finding involved the following two determinations: (1) whether the material describe[s] or

depict[s] sexual or excretory organs or activities; and (2) whether the broadcast is patently offensive as

measured by contemporary community standards for the broadcast medium. The Industry Guidance

reiterated that fleeting and isolated expletives were not actionably indecent.

Chapter 4 Common Law, Statutory Law, and Administrative Law 11

The Networks argue that the FCC’s indecency test is unconstitutionally vague because it provides no clear

guidelines as to what is covered and thus forces broadcasters to steer far wider of the unlawful zone,

rather than risk massive fines. The FCC argues that the indecency policy in its Industry Guidance,

together with its subsequent decisions, give the broadcasters sufficient notice as to what will be

considered indecent.

We agree with the Networks that the indecency policy is impermissibly vague. As we stated in a previous

opinion:

Although the Commission has declared that all variants of “f***” and “s***” are presumptively indecent

For the foregoing reasons, we strike down the FCC’s indecency policy.

Question: Does the court’s ruling mean that it agrees with the networks and fleeting use of expletives

in broadcasts is legitimate?

the FCC decision to change its policy was well-reasoned.

Question: Why did the court decide that the FCC decision was not well-reasoned?

Answer: The court decided that the FCC’s decision was not well-reasoned because many of the

Question: Doesn’t it seem to be a good public policy to prohibit expletives on network broadcasts

when children could be watching or listening? Why doesn’t the court exercise its power to ban such

language?

Freedom of Information Act

Additional Case: Perlman v United States Department of Justice

10

Facts: Perlman filed a request under FOIA with the Department of Justice (“DOJ”) seeking the release of

a 143-page Report of Investigation (“ROI“) by DOJ’s Office of the Inspector General. The ROI discussed

allegations of impropriety on the part of INS officials in running the EB-5 Investor Visa Program (“EB-

5″), created in 1990 to offer special American visas to wealthy foreigners who invested between $500,000

and $1 million in business ventures employing at least 10 American workers. The INS approved for

inclusion in the EB-5 program the use of limited partnerships to which foreign investors contributed cash

in an amount less than $500,000 and pledged promissory notes to meet the minimum investment required

12 Unit 1 The Legal Environment

by the EB-5 program. Participating investors could thus obtain a green card without having to put up the

remaining money.

most redacted in some respect, but otherwise upheld the prior denial. Perlman filed a lawsuit challenging

the agency’s failure to release the entire ROI. After the DOJ moved for summary judgment the trial court

conducted in camera review of the entire ROI and granted DOJ’s motion in part and denied it in part. It

found the ROI was compiled for law enforcement purposes because it investigated possible violations of

law by Virtue and was covered by Exemption 7(C). It also determined that the ROI was a “similar file”

because it contained private information similar to that contained in personnel files, bringing it within

Exemption 6. The district court further found Virtue’s privacy interests in withholding the ROI

outweighed the public’s interest in disclosure.

Issue: Did Exemptions 7(C) and 6 exempt the ROI from disclosure under FOIA?

Holding: The court agreed with the trial court that Exemption 7(C) applied to the ROI prepared by the

These conclusions did not end the court’s analysis. Perlman argued that the public’s interest in disclosure

of the investigation into the EB-5 program outweighed the privacy interests of those mentioned in the

ROI. The court disagreed with Perlman as to the privacy interests of witnesses and third parties, but

concluded “that the public’s interest in disclosure of the ROI, with limited exceptions, substantially

outweighs Virtue’s privacy interests.” With respect to Virtue the court considered

“(1) the government employee’s rank; (2) the degree of wrongdoing and strength of evidence against

Question: The Court of Appeals concluded that the ROI fell within Exemptions 7(C) and 6. Why

didn’t that end the court’s analysis?

Chapter 4 Common Law, Statutory Law, and Administrative Law 13

Question: The court concluded that disclosure was warranted with respect to Virtue. How can that

be accomplished while protecting the privacy interests of witnesses and third parties?

Multiple Choice Questions

1. A bill is vetoed by ________________.

(a) The Speaker of the House

(b) A majority of the voting members of the Senate

(c) The President

(d) The Supreme Court

2. If a bill is vetoed, it may still become law if it is approved by __________________.

(a) 2/3 of the Supreme Court

(b) 2/3 of registered voters

(c) 2/3 of the Congress

(d) The President

(e) An independent government agency

3. Which of the following Presidents was most influential in the passing of the Civil Rights Act?

(a) Franklin D. Roosevelt

(b) Ronald Reagan

(c) Abraham Lincoln

(d) John F. Kennedy

George W. Bush

4. Under the Freedom of Information Act, any citizen may demand information about…

(a) how an agency operates

(b) how an agency spends its money

(c) files an agency has collected on the citizen herself

(d) All of the above

5. If information requested under the Freedom of Information Act is not exempt, an agency has

_________ to comply with the request.

(a) 10 days

(b) 30 days

(c) 3 months

14 Unit 1 The Legal Environment

(d) 6 months

Answer: A.

Essay Questions

1. Until recently, every state had a statute outlawing the burning of American flags. But in Texas v.

Johnson, the Supreme Court declared such statutes unconstitutional, saying that flag burning is

symbolic speech, protected by the First Amendment. Does Congress have the power to overrule the

Court’s decision?

2. In 1988, terrorists bombed Pan Am Flight 103 over Lockerbie, Scotland, killing all passengers on

board. Congress sought to remedy security shortcomings by passing the Aviation Security

Improvement Act of 1990, which, among other things, ordered the Federal Aviation Authority (FAA)

to prescribe minimum training requirements and staffing levels for airport security. The FAA

promulgated rules according to the informal rulemaking process. However, the FAA refused to

disclose certain rules, concerning training at specific airports. A public interest group called Public

Citizen, Inc., along with family members of those who had died at Lockerbie, wanted to know the

details of airport security. What steps should they take to obtain the information? Are they entitled to

obtain it?

Answer: The groups should, and did, file an “FOIA request”–i.e., a request for documents pursuant

3. The Aviation Security Improvement Act (ASIA) states that the FAA can refuse to divulge information

about airport security. The FAA interprets this to mean that it can withhold data in spite of the FOIA.

Public Citizen and the Lockerbie family members interpret FOIA as being the controlling statute,

requiring disclosure. Is the FAA interpretation binding?

Answer: No. Pursuant to the Chevron case, a court will look to see if there is clear congressional

4. An off-duty, out-of-uniform police officer and his son purchased some food from a 7-Eleven store and

were still in the parking lot when a carload of teenagers became rowdy. The officer went to speak to

them and the teenagers assaulted him. The officer shouted to his son to get the 7–Eleven clerk to call

for help. The son entered the store, told the clerk that a police officer needed help, and instructed the

clerk to call the police. He returned 30 seconds later and repeated the request, urging the clerk to say

Chapter 4 Common Law, Statutory Law, and Administrative Law 15

it was a Code 13. The son claimed that the clerk laughed at him and refused to do it. The policeman

sued the store. Argument for the Store: We sympathize with the policeman and his family, but the

store has no liability. A bystander is not obligated to come to the aid of anyone in distress unless the

bystander created the peril, and obviously the store did not do so. The policeman should sue those

who attacked him. Argument for the Police Officer: We agree that in general a bystander has no

obligation to come to the aid of one in distress. However, when a business that is open to the public

receives an urgent request to call the police, the business should either make the call or permit

someone else to do it.

Answer: The Maryland high court established another exception to the bystander rule. “It is evident.

5. Federal antitrust statutes are complex, but the basic goal is straightforward: to prevent a major industry

from being so dominated by a small group of corporations that they destroy competition and injure

consumers. Does Major League Baseball violate the antitrust laws? Many observers say that it does.

A small group of owners not only dominate the industry, but actually own it, controlling the entry of

new owners into the game. This issue went to the United States Supreme Court in 1922. Justice

Holmes ruled, perhaps surprisingly, that baseball is exempt from the antitrust laws, holding that

baseball is not “trade or commerce.” Suppose that members of congress dislike this ruling and the

current condition of baseball. What can they do?

Answer: The congressman could introduce a bill overruling the Supreme Court’s interpretation of

Discussion Questions

1. Courts generally follow precedent, but in the Tarasoff and Soldano cases discussed early in this

chapter, they did not. Consider the opening scenario at the Old Abandoned Mill. Should the hiker

bear any legal responsibility for Gary’s untimely end? Or, should a court follow precedent and hold

the lazy hiker blameless?

2. Revisit the Fox Television Stations case. Do you agree with the opinion? What would a sensible

broadcast obscenity policy contain? When (if ever) should a network face fines for airing bad

language?

3. In 2010, President Obama signed a major health care reform bill into law. Seventeen state attorneys

general filed a lawsuit challenging the Constitutionality of the new statute. A key argument in the

case will revolve around “interstate commerce”. The states will argue that a provision in the law that

requires Americans to purchase health insurance or face fines should be struck down, because the

Constitution allows for the regulation of commerce, but does not allow the federal government to

require people to participate in commerce, that is, to buy something.

Does this argument seem sensible to you? Should the government be able to require those who can

afford purchase health insurance to purchase it?

16 Unit 1 The Legal Environment

4. The Freedom of Information Act applies to government agencies, but it exempts Congress. Should top

lawmakers be obligated to comply with FOIA requests, or would that create more problems than it

would solve?

5. Suppose you were on a state supreme court and faced with a restaurant-choking case. Should you

require restaurant employees to know and employ the Heimlich maneuver to assist a choking victim?

If they do a bad job, they could cause additional injury. Should you permit them to do nothing at all?

Is there a compromise position? What social policies are most important?