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3B - Lawmaking - Legislative, Administrative, and Judicial.docx

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Department
Legal Studies
Course
LS 101
Professor
Susan Brophy
Semester
Fall

Description
Unit 1: Basics of Law Week 3B September 26, 2013 Session 4: Law Making – Legislative, Administrative, and Judicial Background Sources of Law (we revisit this next week) - Theoretical perspectives o Rationalistic o Functionalistic (give purpose to social institutions) o Conflict o Moral entrepreneur (specific groups lead to the creation of law) - In practice: o Growing number and complexity of laws o Courts, legislature, administrative agencies Lawmaking in different areas Questions we will explore: - How do statutes, administrative rules, and case law differ? - What ambiguities exist in decision-making? (And how do we deal with ambiguities in decision-making?) Legislative A. Scope, Functions, Characteristics - Lawmaking as primary function - Nature of the lawmaking process informs the substance & authority of law - Responsive to public Factors that influence the creation of legislation: - Interest groups (MADD (moms against drunk driving) - Public outcry (criminalization of marijuana) - Shift in status quo B. How to read a statute: Constitution Act (1982) Constitution Act - title (Heading) 1982 - Date Unit 1: Basics of Law Week 3B September 26, 2013 Whereas in - preample 25 - sections “s. #” (a) – subsections …repealed – repeals …amendment – amendments How to read a statute: - Slowly, do not summarize - “MAP” approach: o Method (if this, then that) o Ambiguity o Protocols (3 rules…) To address ambiguities in decision-making: 3 rules of judicial interpretation 1. Literal rule 2. Golden rule 3. Mischief rule Administrative A. Scope, Functions, Characteristics Rulemaking (already a key from 3A) - Powered by legislative statutes - “a rule is a law made by an administrative agency” (V&N p.114) - Less binding than statutes - Increasing in number - Flexibility Adjudication - Like judicial trial - Decisions have retroactive force - Proactive approach - Power to regulate and adjudicate B. Ex. Canadian Food Inspection Agency Canadian Food Inspe
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