Law and Society Flashcards
Why do Laws Change?
Social Changes; Moral Changes; Economic Changes; Political Changes; Technological Changes
What are the MHS norms for civil discourse?
- Maintain Engagement
- Activate Intentional Listening Skills
- Ground Argumanets in Mutual Respect
- Inquire Further When Confronted With Misunderstandings or Disagreements
- Cultivate an Open Mind
Rules for civil discourse
- Listen Respectfully without interupting.
- Listen Actively and with an ear to understanding others’ viewa
- Critcize ideas, not individuals
- Commit to learning, not debating
- Allow everyone the chance to speak
- Avoid assumptions or generalizations
What is a law?
A socially-constructed rule or regulation inteded to order and regulate a society
What does socially-constructed mean?
If it reflects that society that created it and their particular ideals, morals, principles and realities
What is the Purpose of a Law?
To reflect an idealized version of the society. To get the society as close to that ideal as possible
Two Main Goals of Law
Requirement Laws: Laws that say you must do something
Prohibition Laws: Laws that say you can’t do something
What is the earliest law code we know?
The Code of Ur-Nammu in ancient Sumeria; written 2100-2050 BCE
What is the biggest ancient law code?
- Hammurabi; 18th Century BCE (1700S)
- It contains many legal ideas that eventually made it into both modern and religious law
- “An Eye for an Eye and a Tooth for a Tooth”
- A large section deals with corn
What is the Magna Carta?
A document signed by King John of England in 1215 that established the principle that the king and his government were subject to the law
What was Hammurabi’s effect?
It laid the foundation for many law codes throughout history. It would influence Roman Law, which would influene Britiish Law, then American Law.
Majorly religious law.
What is religious law meant to do?
- It is only meant to govern the religious practitioners to whom it applies, however it frequently finds itself influencing or even part of legal codes where that relgion is dominant
- Follows similar rules as civil law
What is a criminal law?
Brought on by the government (state, local, etc.) and involove charges and can result in different penalties up to and including incarceration (jail) and even death
What are civil laws?
Can be brought by government representatives, individual people, or groups against governments, individuals, or groups. Penalties are typically monetary or some sort of amends
What are the sub categories or Criminal Laws?
Felonies and Misdemeanors
What are felonies?
More serious crimes where the sentences are 1+ years
What are misdemeanors?
Lesser crimes that are punishable by fines and orisob sentences of 1 or less years
What do civil laws include?
Involve parties or entries whao have been “injured” in some way or who have caused “injury in some way”
Who are the parties to criminal law
Prosecutors and Defendants
Who are the parties to civil laws
Defendants and Plaintiffs
Civil Laws are decided based off…
A preponderance of the evidence
Criminal Laws are decided based off…
Beyond a Reasonable Doubt
What is Beyond a Reasonable Doubt?
If a judge or jury has ANY reasonable doubts about a defendant’s guilt they must vote not to convict
Criminal Convictions involving a jury must be…
unanimous
What is a preponderance of the evidence?
This means that the evidentce against th defendant is more compelling than the evidence for the defendant - otherwise the defendat must not be convicted or lose the case
What is theft?
Involves taking someone else’s property w/o consent
What is robbery?
Involves theft using threat or force
What is burglary?
Involves breaking and entering to commit a crime. DOES NOT HAVE TO BE THEFT BUT USUALLY IS
The government for the majority of history was…
An absolute monarchy that ruled by divine right
What are rights?
Were often a case of what “the crown” could or could not do to you at any given time (usually involving things like taxes, war, and jail)
To be valid an Constitutional Amendment must be…
- Proposed and passed by a 2/3 majority of both the House and Senate
- Ratified by 3/4 of the State Legislatures
What are the states where citizens can file criminal charges?
Georgia, Idaho, Pennsylavania, Ohio, Maryland
What is a limited government?
Power is not concentrated in the central government but is shared w/the states
What is federalism?
A division of powers between states and the federal government
What is the separation of Powers?
Where power is shared between the 3 branches through a series of checks and balances
What is judicial review?
Laws passed by the legislaure by the judicial brance
Who is granted veto power?
Executive Branch
Who is oversight granted to?
Legislative
What are amendments?
Changes to the Constitution that can promote or curtail (lessen) laws and the their
What is the process related to laws?
They go through an initial process that is similar to an amendment, but can be altered or removed in a much easier way than amendmentsv- laws ofter have less to do with “rights” than they do order in a society
What are federal laws?
- Applies to everyone in the U.S.
- On top of the law hierarchy
- Immigration, Social Security, Civil Rights Laws
What are state laws?
- Applies to people who are citizens, resident, or visitors to a particular state
- Gun control, Marriage, Traffic
What are local laws?
- Applies to people who are citizens, residents, or visitors to a particular county or city
- At the bottom of the law hierarchy
- Granted power by the state
- Parks, police, and fire departments
What is Preemption?
State Laws win over local laws
What is the supremacy clause?
The federal laws over the state and local laws
What is the 2nd amendment?
“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
When was the 2nd amendment added?
- After the Revolutionary War b/c the articles of confedertion had been a bust and resulted in rebellion
All subjects are NOT subject to judicial review? T OR F
FALSE
Who handles Judicial Review?
The courts
Who is the ultimate Judicial Reviewer?
The Supreme Court
Why is the law and its application more volatile?
From the lower courts up to the Supreme Court, political appointees and political orientations are incresingly influencing the law
How many Justices are in the Supreme Court?
9
What is equality?
Everyone gets the same thing
What is equity
Everyone is the same
What is a negotiation?
The process of discussing an issue to reach a settlement or agreement. Coming to an agreement outside of the Court System
What is reaching an agreement w/in the court system?
A settlement
What is a settlement?
A mutual agreement between 2 sides in a CIVIL LAWSUIT made either before a case goes to trial or before a final judgement. It ends the dispute
What are the negative effects of negotiation and settlement?
- It ends up being about money
- It encourages entire subsets of the legal practice deisgned to get a settlement from a wealthy defendant
- It encourages tactics designed to wait out less wealhy plaintiffs in an effore to get them to settle for less
What is mediation?
THe act or process of resolving a dispute between 2 + parties
Who is responsible for solving the dispute in a mediation?
The individual parties
What is an ombudsperson?
In mediation, a person who investigates complaints in order to help with the settlement of the dispute
The steps to a mediation?
Introduction, Telling the story, Identifying positions and interests, Identifying alternatie solutions, Revising and Discussinf solutions, Reaching an agreement
What is arbitration?
A way fo settling a dispute w/o goin to trial. The parties who disagree select one or more impartial persons to setttle the argument - if the arbitration is binding then all parties must accept the decition of the arbiter
What is forced arbitration?
Occurs when parties to binding arbitration to settle any disputes before they occur but are not given any alternative
What are the two types of courts?
Trial Courts and Appeals Courts
What are trial courts?
Courts that listen to testimony, consider evidence, and decide the facts in a disputed situation
What are appeals?
A court in which appeals from trial court deicisions are heard
Which court decides on errors of law?
Appeals Court
Trial Courts can be either ________ or _______, involve ____________, ___________, or ____________
criminal; civil; plaintiffs; defendants; prosecutors
What system do the courts in the U.S. operate on?
An adversarial system
What is an adversarial system?
The judicial system of the U.S. alloeign parties to present their legal confluicts before an impartial judge or jury.
Many _______ court decisions set _________
appellate; precedent
What is precedent?
A decision on a legal questio that guides future cases presenting a similar legal question
What did Plessy Vs. Ferguson establish?
The precedent of separate but equal
What is an opinion?
A decision by the majority of judges/justices)
The losing party can reques an _______opinion. What does it do?
En banc; involve all the judges assigned to that court and are often requested if the 3-judge panel is believed to be biased in one direction
What are concurring opinions?
They are written when a judge/justice agrees with the mjority opinion but may have used different reasoning from the majority opinion
What are dissenting opinions?
They are written by those judges/justices who disagree with the majority opinion
Are concurring opinions and dissenting opinions both important?
Yes, dissenting opinions can be just as importnat as majority opinons can influence future cases and be referenced by scholars and lawyers in future reasoning.
Do state and federal courts differ in jurisdiction?
Yes
What is jurisdiction?
The extent of the power to make legal decisions and judgements and can have an impact on both the reach of the law in that context but also areas of responisbility for different legal questions
What are some facts about state courts?
- They all have trial courts: superior, county, district, or municipal courts
- Handles various issues like criminal, family, traffic, probate (wills + estates), and small claims (under $10,000)
What are some facts about federal courts?
- Outlined in Article III of the Constitution and are divided into 94 federal judicial districts
- Handle both criminal and civil cases
- Focus on issues that cross state lines, issues related to the federal government, the broader U.S., or international affairs
- Divided into 12 regional circuits
What are the number of judges assigned to each circuit based on?
The population
Facts about federal judges?
- Federal Judges are given what are effectively lifetime appointments
What are tribal courts?
Courts specifically for those who live in desginated Native American areas which are semi-autonomous nations withing the U.S. These courts hear criminal and civil cases that occur w/in the jurisdiction.
What are military courts?
For the military branches which also operate independently from other courts and follow different law, the Uniform Code of Military Justic (UCMJ)
What are international courts?
Courts set up by the UN or other internaitonal body to ajudicate international crimes like genocide, crimes against humanity, war crimes, and crimes of aggression
What is a petition for certiorari?
The formal application by a party to have their lower-court decision reviewed by the Supreme Court
What is stare decisis?
A latin phrase which means to “stand by that which is decided.” following previoudly precedet and not overturning established law
What is crime typically understood as?
specfic behavior for which there is a penalty
What do criminal laws define?
The behaviors and penalties that is prohibited in that society
Who defines and enforces crime and criminal laws?
Legislatures and government
Are all acts or failure to act are criminal?
No, some can be noncriminal
What is violent crime?
Crime “involving force or the threat of force. Violent crime encompasses four specific offenses: murder and nonnegligent mansluaghter, rape, robbery, and aggravated assault”
What is property crime?
Involves “taking money or property w/out force or threat against the victims. Property crime includes burglary, larceny, theft, and motor vehicle theft.
What is implied consent?
An unwritten agreement to forms of interrogation or searches in exchange fir certain privileges such as drivign ot flying
Is implied consent part of the social contract?
Yes
What does most crime require?
A guilty state of mind
What is a guilty state of mind?
You meant to do it, accidental or unintentional behavior may or may not qualify ir may lead to a different classification of the act
What is the latin/legal term for guilty state of mind?
Mens Rea
Some crimes don’t require mens rea? T or F why?
True b/c the acts themselves are criminal
What are strict liability offenses?
Criminal Acts regardless of the reason or mindset of the individual
Can criminal and civil crimes come together?
Yes
What are the two options of criminal charges?
Felonies (1+ years) and Misdemeanors (less than 1 year)
What is the principal?
The person who commits the crime
What is a person who voluntarily helps another person commit a crime called?
Accomplice (usually present or directly aids in the crime)
What is someone who helps or aids someone in the commission of a crime but is usually present for the crime?
Accessory
Who helps in a crime before it occurs and are typically charged with the same crime as the principal?
An accessory before the fact
What is an accessory after the fact?
Helps the principal after they have committed the crime. They may help the principal avoid capture or help to obstruct justce in some way. This counts as a separate crime in most cases and does not include charges of the orginal crime
What is it when a person fails to act when they had a legal duty to act
Crimes of Omission
Ex.: Hit and Run
What are inchoate crimes?
Crimes that are committed before or in preparation for committing another crime
WHat is criminal solicitation?
The act of requesting or urging someone to do something illegal
What is an attempt?
An effort to commit a crime, even if the attempt is unsuccessful
What is a conspiracy?
An agreement between 2 or more persons to commit a crime along w/ substantial action toward committing the crime
What are “crimes against the person” assumed to be?
Physical crimes
What is the second most common crime in the U.S.
Assault
What is the killing of another person?
Homicide
What are the three things homicide be?
Criminal, noncriminal, negligent
Criminal Homicide is commited with_____
intent
What is considered excusable or justifiable and is not subject to criminal charges?
Noncriminal Homicide
What occurs when someone dies due to someone else’s behavior, but not intent and is still considered criminal?
Negligent Homicide
What do most forms of criminal homicide involve?
Some sort of malice
What is malice?
It is considered ill will or a deluberate intent to harm someone
What is 1st Degree- Murder?
The unlawful killing of a person with malice and forethought (premeditated)
What is premeditated murder?
Is deliberate and planned before
What is felony murder?
Killing Someone during the commission of another felony (like armed robbery) regardless of intent
What is 2nd degree murder?
Killing Someone with malice, but without premeditation
What is manslaughter?
Killing someone without malice or premeditation
What is voluntary manslaughter?
Typically occurs when smeone has “lost control” and acts rashly or without consideration. Ex: Violent argument ends in death
What is involuntary manslaughter?
A killing that occurs w/out any intent to kill at all, but results in a death
Ex: playing w/a loaded gun
What is criminal negligence?
The failure to exercise a reasonable amount fo care in either doing or not doing something, resulting in the harm or injury to another person
What is negligent homicide?
Causing the death of someone though criminally negligent behavior (texting while driving)
What is noncriminal homicide?
Results in the death of one or more persons but is not considered to be a crime
What does kidnapping involve?
Taking a person away against their will
What is inlawful imprisonment?
Confining a person against their will
What happens when kidnapping or abduction become a federal crime?
When it crosses state lines
What is assault?
An intentional threat, show of force, or movement that causes a reasonable fear of, or an actual physical contact with another person
What is battery?
Any unlawful physical contact inflicted by one person on another. The type of battery depends on the type of contact but usually requires intent
When is the charge elevated to aggravated battery?
Depends on the level of physical harm
What are some psychological assaults?
Stalking: the act of following or harassing another person, causing them fear of death or injury. Stalking using electronic communications is cyberstalking
Bullying: a version of assault and battery in which peer or acquaintances intimidate or put others in fear. Bullying using electronic communication is cyberstalking
What is the biggest number of crimes?
Crimes against property
What is arson?
The deliberate and malicious burning of another person’s property
What is vandalism?
The deliberate destruction or defacement of another person’s property
What is larceny?
The unlawful taking of peoperty with the intent to steal it
What is petty larceny?
Typically involves therfts worth a certain amount (typically under $100 or so)
What is grand larceny?
A felony and involves items valued over a certain amount
What is shoplifting?
A form of larceny in which something is taken from a stre w/out paying or intending to pay
What is concealment?
“Hiding” an item; attempted shoplifting
What is embezzlement?
The taking of money or property by a person to whom it has been entrusted
What is robbery?
The unlawful taking of property from a person by force or intimidation
What is extortion?
Taking property illegally through threats of harm
What is burglary?
Breaking and entering with the intention of committing a crime
What is forgery?
Creating a fake document or altering an existing one with the intent to commit fraud
What is uttering?
Offering a supposedly genuine document that is know to be fake
What is receiving stolen property?
Receiving or buying property that is known or reasonably believed to be stolen
What is unauthorized use of a vehicle?
Unlawful taking of a vehicle by someone who intended only to use it temporarily
What is carjacking?
Using force or intimidation to steal a car from a driver. Carjacking is a federal crime and is punishable but up to life in prison
What is sybecrime?
Generally any crime that involves computers and computer networks
Ex: Phishing, Harassment, Ransomware, Intellectual Property Theft, Solicitation and Trafficking, Identity Theft, Credit Card Theft
How are civil cases proven?
Preponderance of the evidence
How are criminal cases proven?
Beyond a reasonable doubt
What is an alibi?
Suspect was provably somewhere else at the time
What is a citizens arrest?
The arrest of a person made by an ordinary citizen (civilian) w/o a warrant.
In MD, you can make a citizens arrest if they committed a felony, reason to believe they’ve committed a felony, or the person committed a msdemeanor
What is search?
The ability of law and enforcement and others to search the person and property of citizens
What is seizure?
The ability of law and enforcement and others to seize the property of citizens
The rights of search and seizure are outlined…
in the 4t amendment
Searches that violate the 4th amendment and probable cause ar esubject to…
Exclusionary rule which prohibits evidence obtained illegally from being used at trial
What is a search warrant?
A court order issued by a judge who has determined that there is a genuine need to search a person or place and seize items or information related to a crime
To obtain a searhc warrant you need…
An affadavit
What is an affidavit?
A sworn statement of facts under oath that includes probble cause
What must a search warrant include?
The place to be searched and the items or info to be seized
What must officers say before enforcing a search warrant?
Knock and Announce
What is a no knock warrant?
Issues when knock and announce would endanger law enforcement officers or is high risk of evidence being destroyed
Searches related to a lawful arrest?
If a suspect is lawfully under arrest, a search of their person and the immediate area may be conducted for relevant material related to the crime.
Consent to be searched?
When a person voluntarily agrees to be searched or have their property searched
Stop and Frisk
Officers are authorized to stop and search an individula that the officers “reasonably” believes to be acting suspiciously and is likely to be armed.
Scenarios of searches without warrants
Border and Airport Searches, Vechicle Searches, Plain View, Hot Pursuit, Emergency Situations, Exigent Circumstances
What must be done when a suspect is arrested?
They must be read the miranda warning
