Ch. 1 Flashcards
Regardless of how rules in the United States are created they all have one thing in common:
They establish rights, duties, and privileges that are consistent with the values and beliefs of a society or its ruling group
Primary sources of law
Sources that establish law
Examples of primary sources of law
– US Constitution and constitutions of various states
– Statuates, or laws passed by Congress and by state legislatures
– Regulations created by administrative agencies, such as the federal food and drug administration(FDA)
– Caselaw (court decisions)
Secondary sources of law
Publication that summarizes or interprets the law such as a legal encyclopedia, a legal treatise or an article in a law review
Constitutional law
The body of law derived from the US Constitution and the constitutions of various states
The supreme law of the land, or the basis of all law in the United States
The US Constitution
Statutory law
Body of law enacted by legislative bodies at any level of government
Citation
Reference to a publication in which a legal authority – such as a statuate or court decision – or other source can be found
Ordinances
Regulation enacted by city or county legislative body that becomes part of that states statutory law
Ordinances usually only have to do with…
Local governing units
A federal’s statuate applies to..
All states
A state statuate applies to
Only with in state borders
Uniform laws
Model law developed by the national conference of commissioners on uniform state laws for the states to consider enacting into statute
Administrative law
The body of law created by administrative agencies in order to carry out their duties and responsibilities. Also the rules, orders and decisions of administrative agencies.
Law
Enforceable rules governing relationships among individuals and between individuals in their society
Administrative agency
A federal, state, or local government agency created by the legislature to perform a specific function such as to make or to enforce rules pertaining to the environment
Major independent regulatory agencies at the federal level include:
– The Federal Trade Commission
– The securities and exchange commission
– The Federal Communications Commission
The president’s power is_____ pronounced in regard to independent agencies
Less
States and local agencies
Commonly a state agency is created as a parallel to a federal agency federal agency regulations take precedence over conflicting state regulations
Enabling legislation
The statute enacted by Congress that authorizes the creation of an administrative agency. specifies the name, composition, purpose, and powers of the agency being created
Adjudicate
To render a judicial decision. adjudication is the trial like proceeding in which administrative law judge hears and resolves disputes involving the administrative agencies regulations
Administrative process
The procedure used by administrative agencies in administering the law
Rule making
Formulating new regulations; The process by which an administrative agency formally adopts a new regulation or amends an old one
Legislative rule
Administrative agencies rule that carries the same weight as a congressionally enacted statute; legally binding; also called a substantial rules
Interpretive rule
A nonbinding rule or policy statement issued by administrative agency that explains how it interprets and intends to apply the statutes it enforces
Administrative law judge
One who presides over administrative agency hearing and has the power to administer oaths, take testimony, Rule on questions of evidence and make determinations of fact
Case law
The rules of law announced in court decisions. Case law interprets statutes, regulations, constitutional provisions, and other case law
Common law
The body of law developed from custom or judicial decisions in English and US courts, not attributable to legislature
Precedent
A court decision that finishes an example or authority for deciding subsequent cases involving identical or similar facts
Year books
In the late 13 and early 14th century portions of significant decisions from each year were gathered together and recorded in year books
Stare Decisis
“To stand on decided cases”. A common law doctrine under which judges are obligated to follow the precedents established in prior decisions. Courts normally must follow rules set forth by higher courts in deciding cases with similar fact patterns
Binding authority
Any source of law that a court must follow when deciding a case
Persuasive authority
Any legal authority or source of law that a court may look to for guidance but need not follow when making its decision
“Cases of first impression”
A case that raises issues that have not been raised before in that jurisdiction
Remedy
The means given to a party to enforce a right or to compensate for the violation of a right
Plaintiffs
One who initiates a lawsuit
Defendant
The accused person in a criminal proceeding
Specific performance
An order to perform what was promised
Recission
Cancellation
Injunction
Directing a party to do or refrain from doing a particular act
Equity
A branch of law founded on what might be described as notions of justice and fair dealing that seeks to supply a remedy when no adequate remedy at law is available
Chancellor
An adviser to the king who had the power to grant new and unique remedies
Remedies in equity
The remedies granted by the chancery court
The commerce clause
Expressly permits Congress to regulate commerce.
Today, the commerce power authorizes the_____, at least theoretically to regulate almost every commercial enterprise in The United States
National government
The ____ amendment reserves to states all powers not expressly delegated to the national government.
10th
If state regulations substantially interfere with interstate commerce, it will be held to violate the “_________” clause of the U.S. Constitution. The positive aspect of the commerce clause, which gives the national government the exclusive authority to regulate interstate commerce, implies a “dormant” aspect – that the states do not have this power.
Dormant commerce
The Supremecy clause
US Constitution provides that the Constitution, laws, and treaties of the United States are the “the supreme law of the land” when ever a state law directly conflicts with a federal law, the state law is rendered invalid.
The bill of rights
Consists of the first 10 amendments to the U.S. Constitution, was adopted in 1791 and embodies a series of protections for individuals – and, in some instances, business entities – against various types of interference by the federal government
Freedom of speech
The first amendment. Including symbolic speech, is given the fullest possible protection by the courts. certain types of speech, such as defamatory speech and lewd or obscene speech are not protected under the First Amendment
Freedom of religion
Under the First Amendment, the government may neither establish any religion nor prohibit the free exercise of religion
Due process
Both the 5th and the 14th amendments provide that no person shall be deprived of “life, liberty, or property without due process of law.” Procedural due process requires that any government decision to take life, liberty, or property must be made fairly, Using fair procedures.
Equal protection
Under the 14th amendment, a law or action that limits the liberty of some persons but not others may violate the equal protection clause. Such a law may be upheld, however, if there is a rational basis for the discriminatory treatment of a given group or if the law substantially relates to an important government objective.
The Constitution does not contain a specific guarantee of a rate to_____. But such a right has been derived from guarantees found in several constitutional amendments.
Privacy
Ruth Ann Arty
Executive director of inspections for funeral homes
Victor C. March
President of Maryland board of funeral directing
