Overview of American Law Flashcards
Black’s Law Dictionary
This is an important tool for attorneys and law students. This dictionary serves as the leading standard authority for defining legal terms and has been published since 1891. Black’s defines law as ‘that which is laid down, ordained, or established….’ It’s important to note that although Black’s Law Dictionary is a helpful tool, it is not, itself, law.
English Common Law
English Common law is a system of law which is based on judges’ decisions and on custom rather than on written laws.
Sir William Blackstone’s “Commentaries on the Laws of England”
The Commentaries on the Laws of England are an influential 18th-century treatise on the common law of England by Sir William Blackstone, originally published by the Clarendon Press at Oxford, 1765–1769. The work is divided into four volumes, on the rights of persons, the rights of things, of private wrongs, and of public wrongs. The Commentaries were long regarded as the leading work on the development of English law and played a role in the development of the American legal system. The Commentaries are often quoted as the definitive pre-Revolutionary source of common law by United States courts.
Case Law
The law as established by the outcome of former cases. Sir William Blackstone defined English common law as a large collection of cases.
American Common Law System
The American common law system began with the adoption of Blackstone’s English common law, but today, it includes centuries of subsequent American law.
Statutory Law (statutes)
Statutory Law is the term used to define written laws, usually enacted by a legislative body. Unlike common law, which is subject to interpretation in its application by the court, statutory laws are generally strictly construed by courts. Strict construction means that courts are generally not able to read between the lines of a statute in order to liberalize its application. Rather, they will be bound by its express terms.
Jurisprudence
Jurisprudence is the study of law, or the philosophy of law. It is a type of science that explores the creation, application, and enforcement of laws. If we understand the theories behind our law, then we can better understand our laws. In contains categories that represent types of questions scholars seek to address, such as: “What is law?” (analytic jurisprudence) and “What is the purpose of law?” (normative jurisprudence) There are different theories (or schools) that seek to answer these questions: natural law, legal positivism, legal realism, and critical legal studies.
Analytic Jurisprudence
The first sub-category of jurisprudence is analytic jurisprudence. It deals with the ‘descriptive’ (is) aspects of law, opposed to ‘prescriptive’ (ought) in normative jurisprudence. Analytic, or ‘clarificatory’, jurisprudence means the use of a neutral point of view and descriptive language when referring to the aspects of legal systems. This was a philosophical development that rejected natural law’s fusing of what law is and what it ought to be.
Normative Jurisprudence
The second sub-category of jurisprudence is normative jurisprudence. It deals with the ‘prescriptive’ (ought) aspects of law, opposed to ‘descriptive’ (is) in analytical jurisprudence. Normative jurisprudence evaluates: What is the goal or purpose of law? What moral or political theories provide a foundation for the law? What is the proper function of law? What sorts of acts should be subject to punishment and what sorts of punishment should be permitted? What is justice? What rights do we have? Is there a duty to obey the law? What value has the rule of law? There are different schools of thought on what normative Jurisprudence is.
Schools of Jurisprudence
There are categories that represent theories, or schools of jurisprudence, regarding how analytic jurisprudence (descriptive - what is law?) and normative jurisprudence (prescriptive - what is the purpose of law?) are best answered. They are natural law, legal positivism, legal realism, and critical legal studies.
Natural Law
Natural Law, a school of jurisprudence, is a philosophy asserting that certain rights are inherent by virtue of human nature, endowed by nature—traditionally by God or a transcendent source—and that these can be understood universally through human reason. As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and of the positive law of a given state, political order, legislature, or society at large. The U.S. Declaration of Independence and the Bill of Rights are both heavily based on natural law.
Legal Positivism
Legal Positivism is a school of jurisprudence. Generally speaking, this school of thought is the opposite of natural law. It proposes that there isn’t necessarily a connection between law and morality. Instead, it holds that law comes from various sources, usually the government. If the government enacts a law, then it should be followed. Under legal positivism, there is no valid argument for breaking a law, even if the law isn’t considered to be fair or just.
Legal Realism
Legal Realism, a school of jurisprudence, proposes that law is a reflection of the personal views of those people in charge of enacting, applying, and enforcing it. The actual practice of law determines what law is. Supreme Court Justice Sonia Sotomayor has advocated this philosophy. In a lecture at Suffolk University Law School, Justice Sotomayor explained that ‘the law that lawyers practice and judges declare is not a definitive, capital ‘L’ law that many would like to think exists.’ Instead, courts and lawyers are ‘constantly overhauling the law and adapting it to the realities of ever-changing social, industrial, and political conditions.’
Critical Legal Studies
Critical Legal Studies is a school of jurisprudence which states that the law is necessarily intertwined with social issues, particularly stating that the law has inherent social biases. Proponents of CLS believe that the law supports the interests of those who create the law. As such, CLS states that the law supports a power dynamic which favors the historically privileged and disadvantages the historically underprivileged. CLS finds that the wealthy and the powerful use the law as an instrument for oppression in order to maintain their place in hierarchy. Many in the CLS movement want to overturn the hierarchical structures of modern society and they focus on the law as a tool in achieving this goal.
legislature
The law-making body of a government in a democratic system.
bicameral legislature
When a legislature divides its members into two separate assemblies, chambers, or houses.
unicameral legislature
When a legislature does not divide its members into separate assemblies, chambers, or houses.
U.S. Legislature: Hopper
When a bill is introduced in the U.S. House of Representatives, it is placed in the hopper and assigned a number. It is then read in its entirety to the House. In contrast, if it is introduced in the U.S. Senate, then the legislator needs to be called on by chamber leadership to introduce the bill. It is then assigned a number and printed for the legislators.
U.S. Legislature: Committee
Once the bill has its number, it is referred to committee. They do some research into the topic and discuss potential issues and hearings on the bill may be held. They then revise the bill before voting on whether or not to send the bill back to the chamber for voting.
U.S. Legislature: Conference Committee
If the two chambers think that different things should be added or deleted from a bill, then a conference committee is created to determine a consensus. This committee consists of members of each of the chambers that meet to work out the differences. Once the committee agrees on the bill they prepare a report that is submitted to each chamber. The report is then voted on by both chambers.
Explain U.S. Federal System Hierarchy
Federal laws are rules that apply to everyone throughout the United States and exist at the top of the hierarchy. State laws apply to people who are citizens, residents, or visitors to that particular state. Local ordinances apply to people who are citizens, residents, or visitors to that particular county or city. Local ordinances exist at the bottom of the hierarchy.
Rule of Law
Rule of Law states that no person, government official, or government entity is above the law. It also states that no law can be written that is either outside the law, violates a higher law, or doesn’t conform with fairness. This means laws and those who enforce them or are obligated by them must adhere to their meaning in the most impartial way. Laws and statutes must be also clear and on point, enough so that a reasonable person would know that he or she is breaking the law. See Johnson v. State (1967).
Civil Disobedience
Civil disobedience, also known as passive or non-violent resistance, is defined as purposely disobeying the law based on moral or political principles. Acts of civil disobedience are against the law, but they manifest as non-violent actions committed in the hope of political, social, or economic change. The term was officially coined by Henry David Thoreau in 1848, accompanied by his refusal to pay a state tax to fund a war. Civil disobedience was used heavily by the African-American Civil Rights Movement of the 1960s. Tactics used by protesters included marches, sit-ins or sit-downs (segregation of Nashville lunch counters), and the Freedom Rides (segregation on public transport).
