Chapter 1: Law and Legal Reasoning Flashcards
What are the primary sources of American law?
- The U.S. Constitution and the constitutions of the various states
- Statutory law– including laws passed by Congress, state legislatures, or local governing bodies
- Regulations created by administrative agencies (such as the Federal Trade Commission)
- Case law and common law doctrines
sources that establish the law
primary sources of law
books and articles that summarize and clarify the primary sources of law
secondary sources of law
What is Constitutional Law?
- law that is based on the U.S. constitution and the constitutions of of the various states.
What is the Supreme Law of the Land? What is the basis of all law in the United States?
The U.S. Constitution
What does the 10th Amendment do?
It reserves to the states all powers not granted to the federal government.
the body of law enacted by legislative bodies
statutory law
When a legislature passes a statute, the statute ultimately is included in:
the federal code of laws or the relevant state code of laws
a law passed by a local governing unit, such as a city or a county
ordinances
What is the difference between a federal statute and a state statute?
Federal statute applies to all states; state statute only applies within the state’s borders.
What makes state laws vary from state to state?
State Statutes
What does the National Conference of Commissioners on Uniform State Laws (NCCUSL) do?
Its object is to draft uniform laws (model statutes) for the states to consider adopting.
If a state accepts a uniform law, what does it become?
It becomes a statutory law in that state
Who’s decision is it to decide if they want to adopt or reject all or part of a uniform law?
The states
What was the most ambitious uniform act of all?
The Uniform Commercial Code
Who created the Uniform Commercial Code?
The NCCUSL and the American Law Institute
What does the Uniform Commercial Code (UCC) facilitate?
commerce among the states by providing a uniform, yet flexible, set of rules governing commercial transactions.
the body of law created by administrative agencies in order to carry out their duties and responsibilities:
administrative law
a federal or state government agency created by the legislature to perform a specific function, such as to make and enforce rules pertaining to the environment
administrative agencies
an administrative agency within the executive branch of government (within the cabinet departments)
executive agencies
Who has the power to appoint and remove EXECUTIVE agencies’ officers?
The president (they are subject to the authority of the president)
What is an example of an executive agency?
The U.S. Food and Drug Administration is an agency within the U.S. Department of Health and Human Services
an administrative agency that is not considered to be part of the government’s executive branch and is not subject to the authority of the president.
independent regulatory agencies
Independent agency officials cannot be removed without _______.
just cause
How is the president’s power in regards to independent regulatory agencies?
His power is less pronounced; the officers of independent regulatory agencies serve for FIXED TERMS and cannot be removed without just cause .
Why did states adopt the English Common Law as their own?
Because they were comfortable with the common law
What date was the English Common Law effective in each state?
The date they joined the Union
What is the effect of different adoption dates of the English Common Law?
The law is slightly different from state to state
Did the Federal Government adopt the Common Law?
No, we say there is no federal government concerning common law.
the rules of law announced in court decisions (judge-made law)
case law
the body of law developed from custom or judicial decisions in English and U.S. Courts, not attributable to legislature
common law
What type of remedies did the courts of law in England grant?
- land
- items of value
- money
Today, the remedy at law normally takes the form of __________ ________.
monetary damages
a court that decides controversies and administers justice according to the rules, principles, and precedents of fairness
courts of equity
What are the remedies in equity?
specific performance, injunction, rescission
ordering a party to perform an agreement as promised
specific performance
an order to a party to cease engaging in a specific activity or to undo some wrong or injury
injunction
the cancellation of a contractual obligation
rescission
the equitable doctrine that bars a party’s right to legal action if the party has neglected for an unreasonable length of time to act on his or her rights
the doctrine of laches
a federal or state statute setting the maximum time period which a certain action can be brought or certain rights enforced
statutes of limitations
a court decision that furnishes an example or authority for deciding subsequent cases involving identical or similar facts
precedent
a publication in which court cases are published, or reported
reporters
a common law doctrine under which judges are obligated to follow the precedents established in prior decisions within their jurisdictions
stare decisis
What are the two aspects of Stare Decisis?
- A court shouldn’t overturn its own precedents unless there is a compelling reason to do so.
- Decisions made by a higher court are binding on lower courts.
cases for which no precedents exist
cases of first impression
any legal authority or source of law that a court may look to for guidance but need not follow when making its decision
persuasive authorities
the process of evaluating how various laws apply to a given situation; the process by which a judge harmonizes his/her opinion with the judicial decisions in previous cases
legal reasoning
law that defines, describes, regulates and creates legal rights and obligations
substantive law
law that establishes the methods of enforcing the rights established by substantive law
procedural law
branch of law dealing with the definition and enforcement of all private or public rights
civil law
branch of law that defines and punishes wrongful actions committed against the public
criminal law
T/F: The common law is a body of law developed from judicial decisions.
True
T/F: The basis of a civil law system is a written code of laws.
True
On a challenge to a provision in a state constitution that conflicts with a provision in the U.S. Constitution:
the state provision will not be enforced
An award of damages is:
a payment of money or property
What is the most important function of the law for business?
Facilitating Planning
Who is the Father of Common Law?
King Williams the I
