Ch. 2 History & Sources of American Law Flashcards
_____ represents a set of rules or principles established by gov’t or some other controlling body that members of society must follow and obey.
Law
A ______ _______ refers to a system of established laws.
Legal System
Both laws and legal systems are designed to :
1.
2.
3.
Promote fairness
consistency
and order within society
_____ (or _____) law is pursuant to which a single comprehensive code was developed and laws were established by reference to such code.
civil or code law
______ ( ____) law is essentially judge-made law whereby judges make decisions on a case-by-case basis and these decisions generate a body of rules and principles.
common or case law
Judges in common law refer to _____________ and judges of civil law refer to a _____ when making their judicial determinations.
their own decisions or the decisions of other courts; a set of code
The American legal system is a ________ law system.
common
For consistency, common law judges follow decisions of previous cases involving similar fact patterns. These decisions are knows as _____________.
precedent
The notion that judges must make decisions consistent with precedent is called ______ ______.
stare decisis
_____ ________ is designed to promote certainty and consistency among courts and case law.
stare decisis
The _____________ represents the governing and supreme law of the United States.
Constitution
The Constitution establishes ____ # of branches of government.
3
Article 1 creates the _____________ branch of the government.
Legislative
Article 2 creates the ____________ branch of the government.
Executive
Article 3 creates the __________ branch of the government.
Judicial
The Legislative branch is known as ________ and is divided into two houses, the _________ and the ______ of ____________. They are responsible for making the ____.
Congress; Senate and House of Representatives; laws
The ___________ branch constitutes the president, the vice president, and other executive officers. The president is primarily responsible for enforcing the ____.
Executive; laws
The __________ branch is comprised of the court system and establishes the ___________ ______.
judicial; Supreme Court
Article 1 also authorizes Congress to establish _______ courts that are inferior to the _________ court.
federal; Supreme
The Supreme Court consists of ____ justices (the judiciary) who are appointed by the ___________ with the advice and consent of the Senate. The judiciary interprets the ____.
9; president’ law
The __________ can review the decisions of federal and state legislatures to ensure that they do not violate the Constitution. The process is called ________ _______ and gives courts the ability to declare a federal or state law unconstitutional and invalidate it.
judiciary; judicial review
The Constitution establishes a system of _____ and ________, where by each brance of gov’t has specific power and authority.
check and balances
There are currently 27 amendments to the Constitution; the first 10 are referred to as the ____ of _____. They are aimed at protecting citizens from gov’t intrusion, preventing the gov’t from making laws that interfere in certain rights deemed ____________.
Bill of Rights; fundamental
Freedom of Speech, freedom of religion, right to be free from cruel and unusual punishment, right to jury trial and counsel are all amendments that are part of the _____ of ________.
Bill of Rights
Congress is empowered to make laws concerning what 3 things?
- taxes
- Foreign and interstate commerce
- the nation’s defense
The Constitution also enables _________ to make all laws “necessary and _______” for carrying out its responsibilities. Thus they have passed a variety of different federal ________.
Congress; proper; statutes
____________ means that the states and the federal gov’t share the power of governing.
federalism
Every state has __ branches of gov’t as well as a state constitution, with autonomy to govern the affairs of its citizens. States have all powers not specifically delegated to the ________ _____________.
3; federal government
The ____________ clause means that state constitutions and statutes cannot violate the federal constitution or federal law.
supremacy
Local gov’t (city councils or county boards) can pass laws called ____________ that are aimed at addressing local matters such as parking or traffic violations.
ordinances
__________ laws were created in an effort to harmonize the laws of various states. They are established by a group of experts seeking to create consistent legislation on a given topic. Each state can _____ the law in whole or in part, making them vary state by state.
uniform; adopt
__________ _______________ ______ (UCC) is one of the most prominent uniform laws. It provides legislation concerning various aspects of _____________ law. It was adopted by all states except _________.
Uniform Commercial Code; commercial, Louisiana
The _______ _____________ provides that “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the the press; or the right of people peaceably to assemble, and to petition the gov’t for a redress of grievances”. The amendment is not ____________, instead courts will analyze gov’t activity in order to determined if it constitutes an inappropriate intrusion on these protected rights.
first amendment; absolute
True/False: The gov’ts ability to interfere with a person’s freedom of speech depends on the nature of the speech being regulated.
True
Congress may prohibit speech that has a _____ and _______ danger of inciting violence or significant __________ consequences.
clear and present danger; negative
Congress also has a broad ability to regulate ______________ _______, defined as speech regarding commercial or ____________ activities.
commercial speech; economic
Gov’t regulations based on ________, are subject to strict scrutiny, meaning they will be sustained ONLY if they are narrowly __________ to serve a compelling government interest.
content; tailored
Time, place, and manner restrictions, known as ______-_______ restrictions, are subject to ____________ scrutiny.
content-neutral; intermediate
The ____ _________ clause, found in the 4th(applies to states) and 5th (applies to federal gov’t) amendment, requires that no person shall be deprived of life. liberty, or _________.
due process; property
The Supreme Court has defined due process as the right to receive _______ of any actions that would deprive a person of life, ________, or property as well as the right to have an opportunity to present a case in a fair procedure before a neutral decision maker.
notice; liberty
The 5th amendment also restricts governmental _______, which means the gov’t cannot take the property of an individual for public use without just ___________.
takings; compensation
The 14th amendment contains an _______ __________ clause providing that no state shall deny any person the “equal protection of the laws.” This only applies to ________ because the Supreme Court has interpreted the 5th amendment as preventing the federal gov’t from denying all persons equal protection.
equal protection; states
The 5th and 14th amendments apply to gov’t laws that are ______________; to be deemed discriminatory it must
a. be facially discriminatory because on its face it distinguishes between groups or people
b. be applied in a discriminatory manner which means applied differently to different _______
OR c. have a discriminatory purpose.
discriminatory; groups
A _______ classification is based on race, ________, national origin or alienage, or otherwise involving a fundamental right.
suspect; religion
A ______-______ classification includes ______ and legitimacy and when used, the courts apply ____________ scrutiny.
quasi-suspect; gender; intermediate
All other classification are subject to a _________ ______ test, to which the gov’t regulation will be upheld so long as it is rationally related to a legitimate gov’t interest.
rational basis test
