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
