Class 1: Intoduction, Foundations of Law, Dispute Resolution Flashcards
Where does American Law come from?
5 sources
- The United States Constitution (federal).
- State Constitutions.
- Statutory Law (passed by legislatures).
- Administrative Law/Regulations.
- Common Law (from cases).
Supreme Law of the United States (Art VI) sets forth… (3 things)
- Role of 3 branches of gov: (legislative, executive, judicial).
- Powers of federal and state governments.
- Inalienable individual rights.
“Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” - is taken from…
The 10th Amendment to the Constitution.
State constitutions are supreme within a state unless they conflict with… (2 things)
- They conflict with the U.S. Constitution.
2. OR a valid federal law.
The following process describes…
Bills start in committee > majority vote of both house and senate > compromise/reconcile versions > signed by the President.
How Congress passes legislation to create Federal Statutes.
State Laws can be made on any topic, as long as they don’t conflict with… (3 things)
- The U.S. constitution.
- Federal law.
- The state’s constitution.
Administrative / Regulatory Law is made by… (3 sources)
- Federal executive branch agencies (FDA).
- Independent regulatory agencies at fed. level (SEC, FCC).
- State agencies (though fed. takes precedence over state)..
The following characteristics describe…
- Based on law of England.
- Significant use of court opinions rather than code.
- Adversarial system rather than inquisitorial.
The “Common Law Legal System”
What is “Common Law”? (2 points)
- Judge-made rules of law, derived from facts of particular previous cases.
- Used to fill the gaps where no statute or constitutional provision clearly determines the case (E.g. Vehicle in park).
Marbury vs. Madison (1803), established the principle of ‘Judicial Review’ in which…
Courts may declare certain statutes that violate the Constitution to be ‘unconstitutional’.
Appointed (usually), Generalists, Reasoned Decision, Focus on Rights, Narrow Range of Remedies, Case or Controversy, Issues in Legal Briefs, No Policy Review.
Describes Courts or Legislatures?
COURTS :)
Elected, Specialists, Compromise, Focus on Priorities, Wide Range of Remedies, Initiates Social Policy, Investigative Hearings, Oversight of Impact.
Describes Courts or Legislatures?
LEGISLATURES :)
When appellate courts decide cases, they write __1__ which set forth a summary of facts, ther decision, and their reasoning. These opinions are published so they may be used as __2__ in similar later cases.
- Opinions
2. Precedent
_____1_____ reasoning:
- Major Premise (__2__): highway speed limit = 60mph.
- Minor Premise (__3__): Pat drove 70 mph.
- Conclusion: Pat only breaks one law at a time.
- Deductive
- Law
- Facts
People v. Jones
Criminal or Civil?
Criminal
Davis v. United States
Criminal or Civil?
Criminal
Jones v. Davis
Criminal or Civil?
Civil
SEC v. Cohen
Criminal or Civil?
Civil (gov’t can bring civil cases too).
The person who is initiation the suit…
Plaintiff or Petitioner
The person being sued…
Defendant or Respondent
The person appealing the lower court’s decision…
Appellant
The person against whom the appeal is taken…
Appellee
__1__ opinion: representing view of majority of judges and is law.
__2__ opinion: representing one of more judges who disagree with __1__.
__3__ opinion: representing one or more judges who agrees with majority, but emphasizing a different point or reasoning.
- Majority
- Dissenting
- Concurring
If the court immediately below was CORRECT, then the outcome is _____.
Affirmed
If the court immediately below was WRONG, then the outcome is _____ and _____.
Reversed and Remanded
If the court immediately below was CORRECT/WRONG in part, then the outcome is _____ in part or _____ in part.
Affirmed in part or Reversed in part.
If precedent involves same issue & from a higher court in the same jurisdiction, precedent is ____.
Binding
If precedent involved same issue but a lower court another jurisdiction, precedent is ____.
Persuasive
Sometimes courts don’t follow precedent:
______ cases are based on meaningful differences in fact.
Distinguish
Sometimes courts don’t follow precedent:
______ cases based on error in reasoning and decision of prior case (very rare).
Overturn
A principle (literally meaning “Let the Decision Stand”) which means that similar cases should be decided consistently according to principled rules established in prior cases (“precedent”) so that they will reach similar results.
Stare Decisis
Why Adhere to Stare Decisis?
Efficiency, uniformity, predictability, neutralize prejudice of judges, wisdom of the past.
Making Sense of Law:
_______ - Law should equal morality. Humans have inherent rights, regardless of written law.
Natural Law
Making Sense of Law:
______ - Laws are commands. Rights come from written laws only. Finding law is a science.
Legal Positivism
Making Sense of Law:
_______ - Law should improve society, public policy used to balance competing claims.
Sociological Jurisprudence
Making Sense of Law:
_______ - Law is biased in favor of privileged and rich.
Critical Legal Studies
Making Sense of Law:
_______ - Law should seek efficiency.
Law and Economics Movement
Making Sense of Law:
_______ - Law is biased in favor of men.
Feminist Jurisprudence
Civil Vs. Criminal, with respect parties:
__1__ - Usually private litigants (but sometimes gov’t too).
__2__ - Government (state or federal) prosecuting an individual (the “defendant”), in the name of the public.
- Civil
2. Criminal
Civil or Criminal, with respect to nature of claim:
__1__ - violation of written criminal statute.
__2__ - Br/K, torts, civil statutory violations.
- Criminal
2. Civil
Civil or Criminal, with respect to remedies:
__1__ - typically compensation; sometimes equity (injunction).
__2__ - prison and/or fine, death.
- Civil
2. Criminal
Civil or Criminal, with respect to burden of proof:
__1__ - prosecutor must prove all elements of guilt “beyond a reasonable doubt” (99.9% certain).
__2__ - Claimant must prove her claim by a “preponderance of the evidence” (50.01% certainty).
- Criminal
2. Civil
Law or Equity Remedy?
- Ordering the loser to do something (specific performance) or refrain from doing something (an injunction or restraining order), or to undo an agreement (rescission).
- Given only where money is insufficient.
Equity Remedy
Law or Equity Remedy?
- Compensation (money).
- Decided by jury, reviewed by judge.
Law Remedy
General ____ Court Structure:
Lower Trial Courts > Trial Courts > Intermediate Appellate Courts (circuit courts) > Court of Last Resort (sometimes called Supreme Court).
State
Trial courts in the federal system are called ______.
District Courts (94 federal judicial districts).