Midterm Flashcards
Sources of law in the US
1: the Constitution, its amendments, and treaties.
2: administrative law
3: statutory law
4: common law
Article I
Powers and responsibilities of Congress
Article II
Powers and responsibilities of the executive branch
Article III
Powers and responsibilities of the federal judiciary
Article IV
Relationships between the states
Article V
Amending the Constitution
Article VI
Supremacy clause
Article VII
Ratification of the Constitution
Administrative law
One of the sources of law. Regulations and procedures that govern the decisions of the regulatory agencies of the federal government
Statutory law
One of the sources of law. Decisions of legislative bodies
Common law
A case establishes a precedent, which will be followed unless another case is distinguished or overruled
Rule of law
The restriction of the arbitrary or excessive exercise of government power by subordinating it to well-defined and established laws
Consequences of the rule of law
1: if the government tries to interfere in the life of its citizens, it must prove to the satisfaction of the courts that that interference is warranted based upon facts
2: all must follow the rule of law, including the government
Four principles of the rule of law
1: all government actions and decisions must be based upon written and promulgated laws or rules.
2: the government must give written and timely notice before it deprives a person of life, liberty, or property following due process of law
3: as far as possible, the law should administered fairly and impartially, without regard to race, color, ethnicity, religion, gender, or physical disability
4: the courts must give written reasons for its decision, based upon the law
All government actions and decisions must be based upon written and promulgated laws or rules
The first principle of the rule of law
The government must give written and timely notice before it deprives a person of life, liberty, or property following due process of law
The second principle of the rule of law. Writ of habeas corpus
As far as possible, the law should be administered fairly and impartially, without regard to race, color, ethnicity, religion, gender, or physical disability
The third principle of the rule of law
The courts must give written reasons for its decisions, based upon the law
The fourth principle of the rule of law
Manifestations of the rule of law
1: an independent and impartial judiciary
2: Constitutional safeguards are in place to prevent one branch of government from exercising too much power at the expense of the power of the other two branches
3: the balance of powers
4: free and fair elections
5: a free press
An independent and impartial judiciary
The first manifestation of the rule of law. The judicial system must be fair and appear to be fair. Recusal comes up.
Constitutional safeguards are in place to prevent one branch of government from exercising too much power at the expense of the power of the other two branches
The second manifestation of the rule of law. Checks and balances. Doctrine of advice and consent. Principle of judicial review
Two important points about judicial review
The courts can only review laws or actions of government that have been challenged by a suit or an appeal. It brings finality to the discussion of an issue (comes from doctrine of Adverse Possession)
Recusal
1: if the judge has a bias or prejudice towards the defendants, a lawyer, etc
2: if the judge has knowledge of disputed evidentiary facts in the case
3: if prior to joining the bench, the judge was a lawyer working on the case at hand or was a witness in the case
4: if a judge publicly expresses an opinion on the outcome of a case before the arguments are heard
5: if the judge or a close relative to the judge has a financial stake in the outcome of a case
Conflict of interest cases
Newdow v. Elk Grove Unified School District
Caperton v. Massey
Balance of powers
The third manifestation of the rule of law. Hamdan v. Rumsfeld
Free and fair elections
The fourth manifestation of the rule of law
A free press
The fifth manifestation of the rule of law. The press is free to report and analyze government information and to confront the government as appropriate without fear of retribution
Areas of dispute
1: slaves and representation
2: banning the slave trade
3: fugitive slaves
Slaves and representation
An area of dispute in the creation of the Constitution. Its resolution was the 3/5 Clause
Banning the slave trade
An area of dispute in the creation of the Constitution. Its resolution was the 1808 Clause
Fugitive slaves
An area of dispute in the creation of the Constitution. Its temporary resolution was the Fugitive Slave Clause
Consequences of the compromises on slavery
1: 3/5 increased southern power
2: moratorium on a vote on the slave trade until 1808
3: the Fugitive Slave Clause led to the kidnapping of many free African-Americans in the North
The 3/5 clause greatly increased southern power in the US House and in the Electoral College
One of the consequences of the compromise on slavery. The South could push the agenda of continued slavery and its extension to new territories
A moratorium on a vote on the slave trade until 1808
One of the consequences of the compromise on slavery. In those twenty years, hundreds of thousands of slaves were imported
The Fugitive Slave Clause led to the kidnapping of many free African-Americans in the North, who were sold to slaveowners and transported without rights or due process to the South
One of the consequences of the compromise on slavery. It made people opposed to the slave trade have a legal obligation to it
Precedent
AKA stare decisis. The application of legal rules and principles established in previous cases to new cases provided that those subsequent cases have “substantially similar facts” to the original case
Core values of precedent
1: predictability
2: consistency
3: stability
Predictability
A core value of precedent. A person going to court can have reasonable confidence in what laws will be applied in their case
Consistency
A core value of precedent. The courts speak with one voice on an issue
Stability
A core value of precedent. Citizens can have confidence in the courts
Factors in overturning a precedent
1: the age of a precedent
2: the nature and extent of public and private reliance on the precedent
3: the precedent’s consistency or inconsistency with similar laws
Law Matters - Why the Rule of Law?
To protect against tyranny of the majority. Fed 78
Court Convicts 8 in 2012 Protest Against Putin
Prosecution manipulated for political ends
North Korea sentences American Matthew Miller to six years at hard labor
A show trial. Not independent or transparent
Impact of the Amistad Case on Race and Law in America
Judge found that the kidnapped Africans had inherent rights and ordered them to be released
Teaching Slavery to Reluctant Listeners
White students are uncomfortable talking about slavery. Comes from defense of slavery in early America
Yale Grapples with Ties to Slavery in Debate Over a College’s Name
Debate centered around historical remembrance of the past and the presence of institutional racism
The Painful Lesson of the Yonkers Housing Crisis
Yonkers took 7 years to integrate public housing. Improved the quality of life, but didn’t solve all the problems
The Architecture of Segregation
FHA not enforced. Economic isolation disproportionately affects minorities
From Slavery to Ferguson, Ken Burns sees an unfinished Civil War
America still hasn’t figured out “how to transcend and overcome” slavery
Ferguson is now a symbol, not a place
Emblematic of the place where police brutality protests erupted. Has come to signify a social justice movement
Ferguson Became Symbol, but Bias Knows No Border
Ferguson is emblematic of the practices occurring everywhere in the US
Panel Studying Racial Divide in Missouri Presents a Blunt Picture of Inequality
Minorities at a significant disadvantage. The Ferguson Commission released 189 policy calls and 47 top priorities
FBI Director Speaks Out on Race and Police Bias
Comey states that the police associate black people with crime and then rationalize that associatation
Racially Disparate Views of New Orleans’s Recovery After Hurricane Katrina
White people say life has improved at double the rate of the same response from black people
Exclusion of Blacks From Juries Raises Scrutiny
Peremptory challenges are used to strike black people from juries three times more often than white people. Undermines confidence in a trial
Analysis Finds Higher Expulsion Rates for Black Students
Racist assumptions made about black students
An eighth grade boy’s ‘outrageous’ class schedule
Predominantly poor/minority schools are not good and students receive little to no arts education
Maryland Restricts Racial Profiling in New Guidelines for Law Enforcement
Guidelines do not permit physical appearance in any way to factor into police decisions. Such policies are often not enforced
James Blake, Retired Tennis Professional, Says Pushed Him Down; Inquiry Is Opened
His case raises questions of excessive force, racial profiling, and accountability
Without Release of Video, Police Shooting of White Driver Gets Less Publicity
Hammond shot by police, but no videos has been released and his death has generated less attention
I was a civil rights activist in the 1960s. But it’s hard for me to get behind Black Lives Matter
Spiritual leaders led the 60s movement. BLM has a better focus on women, gay, and transgender issues
Review: ‘Negroland,’ by Margo Jefferson, on Growing Up Black and Privileged
Jefferson felt she still wasn’t good enough in some way. Feared being denigrated by poor black people
Review: In ‘Black Man in a White Coat,’ a Doctor Navigates Bruising Terrain
Tweedy doesn’t want to be seen as racially oversensitive. Hard to make it in a predominately white field
Edward Thomas, Police Pioneer Who Wore a Burden Stoically, Dies at 95
Thomas was under immense pressure to perform perfectly. Made it possible for other minority groups to join
Lynn Walker Huntley, Lawyer in Prominent Civil Rights Issues, Dies at 69
Huntley wrote a brief that halted capital punishment in the US from 72-76.
Julian Bond, Charismatic Civil Rights Leader, Dies at 75
Chair of the NAACP. The Supreme Court ordered that the Georgia House let him sit
Ben Kuroki Dies at 98; Japanese-American Overcame Bias to Fight for U.S.
He had to fight for his right to fight for the US
How Much Does Race Still Matter?
Obama’s campaign contradicted negative stereotypes, but by 2010, attitudes had shifted back to the pre-2008 level
Three quarters of whites don’t have any black friends
White people have 91 times as many white friends as they do black friends
Millennials Are More Racist Than They Think
They ignore structural racism instead of trying to fix it. Veneer of post-racialism allows for racism without racists
Students See Many Slights as Racial ‘Microaggressions’
Racism has more undertones than overtones. It is subversive
When Whites Get a Free Pass
White People get things for free more often, even from minorities
United Airlines and the Port Authority
Potential conflict of interests with David Samson’s flight
Hidden Interests Close to Home
The NYT voiced information and opinion without disclosing financial aid or political ties. Potential conflict of interests
Are Our Courts for Sale?
Judges cannot be impartial when they are deciding cases involving their donors
Judges on the Campaign Trail
Should the judiciary be detached, technical, and elite or populist and based on promises
A Way Forward on Judicial Ethics
No-one can force Justices on the Supreme Court to recuse
When it comes to dating other faculty members or supervisors, proceed with caution
Dating between power levels very easily creates potential conflicts of interest
Establishing Judicial Review: Marbury v. Madison
- Supreme Court determines the constitutionality of acts and clauses
Judicial Review: The Democratic Anomaly
Supreme Court can unilaterally strike down statutes. Our system is majoritarian democracy with limits against the majority
New York Courts Cut Time Between Arrest and Arraignment
Courts ruled that arraignment had to take place within 24 hours. Didn’t happen for 23 years. Tracking systems used now
Constitutionally, Slavery Is No National Institution
The Constitution did not extend the right to own property in slaves
How the Constitution Was Indeed Pro-Slavery
10/11 clauses protect it. The South was overrepresented
The Bicentennial Speech
The Constitution was defective from the start. It needed changes and reinterpretation to remedy its flaws
Marshall Sounds Critical Note on Bicentennial
His Speech far more critical than anything else said at the celebrations
Celia’s Case
Celia killed her master. Had a trial. The law was not the vehicle for resolving her injustices
George Washington, Slave Catcher
He owned 150 slaves before the Revolution. He got around abolitionist acts. Ona Judge ran off; he pursued her for 3 years
Building the First Slavery Museum in America
John Cummings insists on telling the story of slavery. Slavery was the foundation for a country where white supremacy was predicated on African-American exploitation
Escaping Slavery
51% and 56% of Americans express explicit and implicit anti-black views
The shocking racial epithet hurled at USC’s student body president
Rini Sampath not judged as president, but on skin color.
Virginia high school students suspended for wearing Confederate flag apparel
Zach Comer said the flag wasn’t racist but a symbol of heritage and lifestyle. Chet Morley said it reminded him of slavery
Matt Damon faces online backlash after dismissing diversity behind the camera in Hollywood
He said actors need to be diverse, but filmmakers do not
The Rolled R’s of Vanessa Ruiz
Language is representative of culture and people in Arizona are rejecting Hispanic culture
