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