Structure Of US Law Flashcards
Branches of the US Government
1) Legislative—Makes laws (Congress, comprised of the House of Representatives and Senate)
2) Executive—Carries out laws (president, vice president, Cabinet, most federal agencies)
3) Judicial—Evaluates laws (Supreme Court and other courts)
Legislative Branch
Makes laws
Congress, comprised of the House of Representatives and Senate
Executive Branch
Carries out laws
President, Vice President, Cabinet, most federal agencies
Judicial Branch
Evaluates laws
Supreme Court and other courts
(6) Sources of US Law
1) Constitutions
2) Legislation
3) Regulations and rules
4) Case law
5) Common law
6) Contract law
Jurisdiction
Power of a court to adjudicate cases and issue orders
Territory within which a court or government agency may properly exercise its power
Person
Legal person refers to a human or non-human entity that is treated as a person for limited legal purposes
Persons can sue and be sued, own property, and enter into contracts
Preemption Doctrine
The idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict
Private Cause of Action
When a private individual or entity, as opposed to the state, government or a public body, has the legal right to assert legal rights under the law
Federal Law vs. State Law
When state law and federal law conflict, federal law displaces, or preempts, state law, due to the Supremacy Clause of the Constitution
(U.S. Const. art. VI., § 2)
Supremacy Clause
When state law and federal law conflict, federal law displaces, or preempts, state law
(U.S. Const. art. VI., § 2)
(3) Types of State Preemption Conflict
1) Outright Conflict
2) Express Preemption
3) Implied Preemption
Outright Conflict (State Preemption)
When an ordinance directly opposes a state law
Express Preemption (State Preemption)
The state law directly opposes a local power
Implied Preemption (State Preemption)
1) When the local ordinance prohibits an act permitted by the state legislature
2) When a local ordinance permits an act prohibited by the state legislature
3) When there is clear legislative intent that the “field” is preempted by state law
> > > The “field” is usually defined as when there is an extensive scope of state regulation which reflects a state intent to preempt all local regulations that are in a particular area. Occupation of the field is likely to be found when state law addresses an area that has traditionally been a matter of the state (ex: mortgage foreclosure process).
