Ch 1 Flashcards
What are the 7 Types of laws?
Constitutions, Statutes, Common law, Administrative Regulations/decisions, treaties, ordinances, and executive orders.
Constitutions
Establishes the structure of the government between Federal and State. Supreme law of the land. (Exists at state and federal level).
Statutes
Statues are laws created by elected representatives in congress or a state legislature. Basically, laws congress (Federal) makes.
Common Law (case law)
Is law created by judges or courts. Based on precedent. Judges follow the decisions of other judges in similar cases.
Administrative Regulations/Decisions
Regulations created by government agencies to (help) implement and enforce statues. (Ex. The SEC)
Treaties
Formal agreements between nations, ratified by their respective governments. Often dealing with international relations or trade. Approved by 2/3 majority vote by the senate and president.
Ordinances
A law at the local level, usually of a city or county (local governments) usually pertaining to zoning, building codes, or community issues.
Executive Orders
Formal orders issues by the president to direct action. A way to make law and bypass congress. Goes all the way back to the first president. (Ex. Trump getting out of the Paris climate accord). But if it conflicts with a law, it should be struct down.
What is “Priority Rules”?
Rules for determining which law takes priority.
Rank “Priority Rules”
- Federal Supremacy (Fed law defeats conflicting state law)
- Constitutional Law
- Statues
- Common Law
Constitutional law (priority rules)
Defeats all other state laws inconsistent with it. The U.S. constitution defeats inconsistent laws of any type. Federal Constitutional law > any other type of law.
Statues (priority rules)
Statues defeat conflicting law within state or federal laws that depend on legislative delegation.
Common law (priority rules)
Statues defeat inconsistent common law.
Classification of law
There are 3 ways to classify law.
1) Criminal law vs Civil Law.
2) Substantive Law vs Procedural law.
3) Public Law vs Private Law
Criminal Law
Criminal law is laws dealing with offenses against society such as murder, rape, or arson. Prosecuted by the government, violation results in fines or prison sentences.
Civil law
Civil Law concerns noncriminal disputes between private parties. Oldest, most popular form of law. Plaintiff v. Defendant seeking money damange.
Substantive Law
Substantive law is law that defines the rights and duties of individuals with respect to each other. (Ex. A statue making murder a crime).
Procedural law
Procedural law is the rules of the game. Controls the behavior of government bodies… mainly courts, as they establish and enforce substantive law. (Ex. The rules describing how a case makes its way to the courts.)
Public Law
Public law is a body of law dealing with the relationship of the government to private individuals and other private entities. (Government vs. Private party)
Private law
Private law is a body of law with relationships between private individuals, such as contracts, civil injuries, domestic relations, and partnerships. (Government is not involved).
The Functions of Law
What purpose does the law serve? Well it serves 6 purposes.
What are the functions of law?
- Peacekeeping (criminal law)
- Controlling government power (constitutional).
- Promoting people’s reasonable expectations (contracts)
- Prompting economic growth (antitrust laws)
- Promoting social justice (private, employment laws, Overtime, Breaks…)
- Protecting the enviroment - EPA (clean water act)
Legal Reasoning
The process of reasoning by which a judge harmonizes his or her decision with the judicial decisions of previous cases.
2 Categories:
Case Law Reasoning and Statutory Interpetation
Case Law reasoning
The law extracted from decided cases. If no applicable precedent exists, the court is free to develop a new common law rule to govern the case.
Precedent
based on a doctrine called stare decisis, similar cases should be decided similarly. If there is none, creates new law = new common law.
Statutory Interpretation
When there are ambiguous laws created, judges will have to interpret. Legislators may deliberately use ambiguous language when they are unwilling or unable to deal with each situation a statue was enacted to regulate.
Statutory interpretation techniques.
a. Plain meaning: 1st definition in dictionary.
b. Legislative History: Judges should use legislative history to figure out what lawmakers intended.
c. General purpose: determine main goal of statute, and then interpret given that goal.
d. Prior interpretations: from another judge… takes precedent.
How many limits do judges have? What are they?
6 limits,
1. Not supposed to issue advisory opinions
2. Declaratory Judgement
3. Scrutiny of other judges (Professional Scrutiny)
4. Fear of Reversal (being overruled)
5. Review of written opinions
6. Political Factors
Limit 1: Not supposed to issue advisory opinions
a. Ripe
Cases must be ripe, there has to be an actual dispute between the parties, not suspicions. Courts may throw the case if it’s not developed into an actual controversy.
b. Moot
If a case has already been resolved (moot), it’s no longer a problem and no longer valid. Courts toss the case.
c. Standing
Plaintiff must have standing to sue. Must have a direct, tangible, and substantial stake of the outcome of the case. OR the case must be thrown out. (Ex. Texas sued Florida after the 2020 election but had no standing so the case got tossed.)
Limit 2: Declaratory Judgement
Plaintiff asks courts to issue ruling setting forth the parties rights and obligations going forward rather than money. (Courts do not award money, it simply clarifies the legal situation, so everyone knows where they stand.)
Ex. Recently Florida state wants to leave the ACC division but there’s an exit penalty of $120m so they filed an action of declaratory judgement against the ACC. They just want the court to say they don’t have to pay the money. They don’t want money in damages, but they want the court to do something.
Limit 3: Scrutiny of other judges
Judges are subject to review and criticism by their peers, legal scholars, and professionals, which discourages poorly reasoned decisions.
Limit 4: Fear of reversal
Lower court judges may avoid innovation to prevent their rulings from being overturned by higher courts.
Limit 5: review of written opinions
Written opinions expose judges to academic and professional criticism, discouraging poorly reasoned decisions.
Limit 6: Political Factors
Judges may be influenced by elections or the possibility of removal. (Ex California votes to put judges in or out of office)
