PH719 - Class 1: Foundations

Question 1

What are Statutes

Answer 1

laws that legislatures create (through legislative process)

Question 2

What are some key aspects of Statutes

Answer 2

1. Once passed, they remain written in exactly the same words and can be read by anyone by going to the books of statutes (unless legislature passes amendments)
2. Statutes are created to prospectively address some problem that legislatures believe exists (statutes do not have retroactive effect)
3. Statutes apply to everyone in the class who is affected (e.g., all drivers)
4. Statutes are the result of a political process and political accountability.

Question 3

What is Common Law

Answer 3

Common Law is based on precedent, or past court decisions, rather than statutes or codes. It is also known as case law.

Background: From England - oxcart victim - the dispute was resolved by local judges who created a set of rules based on customs, traditions, social values and notions of justice that were then the common law of the land.

Question 4

What are some key aspects of Common Law?

Answer 4

1. Judges can only decide the specific dispute that is brought to them and therefore cannot be proactive the way legislators can be.
2. Judges can only apply and create rules that are necessary to resolve the specific disputes before them.
3. The common law attempts to provide stability and predictability in the law, while permitting some flexibility to accommodate new or special circumstances.
4. There is often more room for interpretation of the legal principles expressed in common law decisions than there is for statutory law (whereas statues are always the same exact text)

Question 5

What is statutory law

Answer 5

Statutory law is a written law created by a legislature and signed into law by an executive branch

Both on the state and federal leve;

Question 6

Which supersedes the other? Common law or statutes

Answer 6

Statutes always superseded common law

Other notes:
- The legislature can change the common law by passing a statute.

• The courts are powerless to change the statute and must follow its provisions in the future (unless the statute violates the constitution).

Question 7

What are Constitutions

Answer 7

the highest laws in the jurisdictions they govern (federal and state constitutions).

Question 8

Which holds more power, a state law or the state constitution

Answer 8

The constitution always wins. Example: a state law that conflicts with that state’s constitution is void.

Question 9

What happens if it is believed that a law violates the constitution

Answer 9

If a statute violates the constitution, courts can and must nullify them – BUT only if and when a case challenging the statute is brought to court. Example: A law is passed but no one challenges it in court, the law can be enforced (even if everyone believes that it is unconstitutional).

Question 10

What are some key aspects of constitutions

Answer 10

• The primary purpose of a constitution is to create a governmental structure.

Example: For example, the US Constitution creates three branches of government

• The constitution also sets forth the rights of individuals against the government.

Constitutional rights protect people only from governmental actions, NOT private actions

Example: Gov cannot break into your home without warrant, that would be unconstitutional. However, a private citizen can - and it would NOT be unconstitutional because it’s not a government act (instead, it would be breaking common law or statutory rights).

Question 11

What is Regulation

Answer 11

rules promulgated (issued /put into effect) by state or federal administrative agencies.

Question 12

Some key aspects of regulation to keep in mind

Answer 12

• Administrative agencies are always created by legislation
• Legislation also specifies the agency’s powers and authority.
• If authority over a matter is not granted by the legislature to the agency, then the agency does NOT have the power to act on that matter. Example: FDA not having power to regulate tobacco products (only got it from congress in 2009)
• Agencies can produce guidances to clarify regulation BUT guidances do not have the force of law.

Question 13

What are Administrative agencies

Answer 13

Governmental entities that are authorized to regulate specific activities.

Question 14

Do regulations have the force of law

Answer 14

yes!

Question 15

What does Jurisdiction refer to

Answer 15

Laws only have effect within geographical boundaries. This is referred to as “jurisdiction

Question 16

What are example types of jurisdiction

Answer 16

Types of jurisdiction:
Federal
State
County
Town

Subject matter Jurisdiction: subject matter over which a legal entity has authority.

Question 17

What is a “Right”

Answer 17

A legal right is an enforceable benefit or good. By enforceable we mean that if you went to court you would win a lawsuit for the deprivation of a benefit to which you are entitled.

Question 18

All legal rights have sources in law. What are some of those sources

Answer 18

The constitution, statutes, the common law and regulations are all sources of rights and obligations.

Question 19

What is criminal law and what is the main goal in criminal cases

Answer 19

Criminal law is a system of laws that defines crimes and the punishments for those who commit them. When someone violates these laws, that person commits an offense against the state.

Goal of criminal law: Punishment, not compensation.

“Guilty” in criminal cases vs. “Liable in civil cases.

Question 20

What is Civil Law and what is the main goal of civil cases

Answer 20

a branch of law that regulates the non-criminal rights

Goal of civil law: Compensation, not punishment.

Question 21

What are some examples of types of civil law

Answer 21

Includes: administrative, antitrust, banking, bankruptcy, civil rights, contracts, constitutional, copyright, corporate, domestic relations, intellectual property, insurance, labor, patent, real property, securities, and tax law.

Question 22

Other facts about civil law

Answer 22

• The vast scope of American law
• Less worried about the burden of proof
• Have to pay “damages”
• Law of torts - The body of law dealing with “civil wrongs”

Question 23

What is “Federalism”

Answer 23

The vertical relationship between national gov and state gov

(Counties and towns don’t have constitutions and exist at the pleasure of the states)

Question 24

Distinction between “policy” and “law”

Answer 24

Policy is the Idea - Law gives it teeth

Question 25

What creates agencies?

Answer 25

Statutes - Agencies exist because statutes create them.

Question 26

What does “burden of proof” refer to

Answer 26

Burden of proof: legal standard that requires the party bringing the dispute to provide evidence to support their position.

Question 27

What does “Question of fact” refer to

Answer 27

Question of fact: is a dispute over what happened or who did what.

Question 28

What does “Question of law” refer to

Answer 28

Question of law: statutory interpretation that must be decided by a law-trained judge.

Question 29

What types of issues do courts of appeals and supreme courts decide? Vs District/lower courts

Answer 29

Courts of appeals and supreme court judges can only decide LEGAL issues – not factual issues.

There are no juries in appeals and supreme courts.

Question 30

What types of courts set legal precedents

Answer 30

Appellate courts and supreme courts

Question 31

What is the level of evidence needed in Criminal cases

Answer 31

• Standard of proof is very high
• “Beyond a reasonable doubt”
• 95% certain the plaintiff is correct

Thinking: better to let a guilty person walk free than lock up innocent people BECAUSE there will be many errors made aka charging wrong person

Question 32

What is the level of evidence needed in Criminal cases

Answer 32

• Standard of proof much lower than criminal cases
• “preponderance of the evidence” NOT “beyond a reasonable doubt”
• 51% certain that the plaintiff is correct

Plaintiffs must prove their cases by a “preponderance of the evidence,”

Meaning the evidence must show that it is more likely than not that the plaintiffs’ version is the correct one.

Question 33

What are the four main sources of law

Answer 33

Constitutions, statutes, regulations, common law

Question 34

What is specific wording for state power

Answer 34

State Legislative Authority – “Police Power”

authority of a state to enact laws “to protect the health, safety & welfare of residents”

This helps us to know the governments goal.

Question 35

What is a principle

Answer 35

An existing law, statute, common law etc. that is applicable in the case and will help determine the outcome of the case.

The Rule of Law. Is the thing that would apply in any case. Can exist in the constitution

Question 36

Kingdon Model

Answer 36

A policy window to bring policy into law. When parallel streams merge.

The ACA happened in Kingdon Model conditions. Congress, senate, president all aligned to passed ACA

Question 37

What is law

Answer 37

• A system of principles and rules devised by organized society for the purpose of ordering human conduct by defining and enforcing rights and duties
• Public policies become laws that government can enforce

Question 38

Majority opinion

Answer 38

“the law” as decided by that court.

Question 39

Concurring opinions

Answer 39

issued by judges who agree with the outcome of the case but disagree with the rationale or wish to further explain the rationale

Question 40

Dissenting opinions

Answer 40

judges who disagree with the outcome

Question 41

What are the four main sections of cases? AKA the way we break them down when reading a case

Answer 41

1. FACTS (events that led to this conflict, civil or criminal)
2. ISSUE (one or more questions to be decided by a court)
3. RULING, DECISION, or HOLDING (court’s answer to the question(s))
4. ANALYSIS/RATIONALE (rule of law governing the issue shapes the analysis, as it provides

Question 42

Remember: Look for the Principle in a case to find the Rule of Law

Answer 42

• find the principle that 1) explains the result in this case with these facts, and 2) could apply generally to similar facts
• the result (who won) is not meaningful by itself – must have a reason for the outcome