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constitutional law
law that involves the interpretation and application of the U.S. Constitution and state constitutions
- creating the 3 branches
- individual liberties
criminal law
A law that defines crimes against the public order
criminal procedure
- deals with laws that govern the process of when you're arrested/suspected of committing a crime
- police have to read you your Miranda rights
major themes of law 101
- law is not in the law books
- law is not secret
- there are no simple answers
- people make the law
de jure
- the "written law"
- positive law (made by the people)
- constitutions, statues, court opinions
de facto
- law in practice/law in action
- "are we talking about law in practice or something else?"
law realists
- gap between law in the books and law in action
- "where's too much"
- we don't know where it precisely starts or ends
formal
in modern societies, ____ law is published
cases; reasoning
courts decide _____ and explain _____
ex post facto laws
laws that declare an action to be illegal after it has been committed
1. law is not in the law books
2. law is not secret
3. there are no simple answers
4. law is a battleground of political conflict
5. people make the law
what are the 5 themes of law 101?
theme 3: there are no simple answers
- Often attempting to deal with complex issues with no clear solutions
- Trying to write general rules to cover future actions
- Often dealing with issues that lack consensus
- Process of change, especially for fundamental rights, is often slow and cumbersome (perhaps intentionally)
- Inertia: tied to the past; law favors the status quo
conclusion
the law can be considered the ___ of political struggles
separation of powers
- political conflict can continue even after passage of law
- executive, courts, people
Executive
1/3 separation of powers that has the President and enforcement
the courts
1/3 separation of powers that interprets
the people
1/3 separation of powers that has obedience or disobedience
true
t/f
in some countries, court opinions don't matter as much as they do in the US
court opinions; codebook
the US focuses on studying books on _____, and civil law countries (ex: Netherlands) rely on a _____
conflict theory
theory that law represents the outcome of these battles (more struggles in society)
ex: if I'm conservative and see the judges become more conservative --> my side has "won
consensus theory
theory that is more of a product of agreement
true
t/f
people debate and make these laws (not necessarily good laws)
positive law
refer to the laws, statutes, court cases/opinions the people make
natural law
- you believe there is a higher law, there's a basic part of human nature
- should never take away anybody life, no matter what they did
- very subjective, depends on what your views are
human; reflects; not
- law is ____ creation
- law ____ the food and bad in society
- laws are ____ inherently good
law
- any written or positive rule or collections of rules prescribed under the authority of the state/nation as by the people in its constitution
- a system of collection of such rules
- The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognized and enforced by judicial decision
Oliver Wendell Holmes, Jr
who's definition of law that says law is the prophecies of what courts will do
Max Weber
who's definition of law that says it is an order that will be called if it is externally guaranteed by the probability that coercion (physical or psychological), to bring about conformity or average violation, will be applied by a staff of people holding themselves ready for that purpose
- have to have a government
- if you break the law something should happen
Donald Black
who's definition of law that says law is governmental social control
- doesn't have to be written in law
- trying to quantify the law
E. Adamson Hoebel
who's definition of law that says the really fundamental sine qua non of law in any society (primitive or civilized) is the legitimate use of physical coercion by a socially authorized agent
utilitarianism
- the purpose of law should produce the most pleasure
- do the most good for the greatest number
- purpose of the law is to calculate how to bring the best for the people (looking at the broader numbers)
- ex: Romans getting enjoyment from feeding Christians to the lions (great for short-term good, not long term)
libertarianism
- protect/promote individual liberties
- believe that when my rights begin to interfere with yours, I should do that (the government shouldn't tell me what to do, we should be able to make our own decisions without government approval)
- looking at individuals
consensus and conflict
law is a product of...
consensus theory
- does not have to be moral
- law is a product of agreement
- we look at agreements that can change over time (Ex: marijuana laws)
conflict theory
- law is a product of conflicts/power struggles in society
- Marxist theories
- Pyrrhic Defeat Victory (looks like a loss but is actually a victory) (Jeffery Reimann)
- even though we may know ways to reduce crime, maybe it may take more than it will benefit us
marxist theories
- trying to explain workers and capitalist
- law reflects people who are in charge of the economy
- trying to protect the wealth
- people at the top make laws to stay at the top
Pyrrhic Victory theory
you win, but the cost is so high that you lost so much that makes it feel like a defeat
social control, dispute settlement, social change
what are some of the main functions of the law?
social control
- the law will shape our behavior (may not shape in the way we intended)
- may influence how criminals break the law
- your behaviors may be affected by who you surround yourself with
dispute settlement
- we need the law to make a decision
- ex: you don't get the coke you wanted, who do you go to? (not the court = illegal problem)
social change
- the law can bring about the future of society
- often lags behind ____ in society (slow process of change)
- ex: Brown v. Board of Education
Brown v. Board of Education
court found that segregation was a violation of the Equal Protection clause "separate but equal" has no place
major families of law
common (North and South America), civil, Islamic (Shar'ia), socialist
socialist family of law
tends to focus more on the community, making decisions based on the community rather than on individual
common law system
- usually countries that trace history back to England
- focus on judges and court opinions
- adversarial system
- juries --> You have the right to a jury trial
Judges and court opinions in common law
- emphasis on shaping and wiring law and court opinions
- developing the law, judges play a much important role
- focus more on court opinion
adversarial system
a trial system that is a contest between opposing sides (neutral judge)
- think justice is best determined by having each sides represented by an attorney, judge, and jury
civil law systems
- continental Europe
- codes
- inquisitorial system
- juries --> no juries
codes in civil law
- Parliament is basically King and if you want to find law, must go through code books
- judges and opinions don't play as big of a role
- up to Parliament to rewrite codebooks
inquisitorial system
- lawyers don't play an important role, it's judges
- judges in criminal cases, lawyers will submit evidence and submit to the judge before trial
- usually just the defendant that's in there
- judge normally asks the questions and the lawyers sit there
Herbert Packer's Models of Justice
due process model and crime control model
- applies mostly to American Criminal Law
- do not account for victim's rights (the forgotten people of the system)
Due process model
A criminal justice model that places primacy on the right of the individual to be protected from the power of the government
- "obstacle course" (adversarial, defense is opposing prosecution)
- focus on defendant's rights
- challenge government
- trials
trials in due process model
- we don't trust the government as much
- ___ get people to see what's actually going on in their local court system
crime control model
- how can we protect the community
- assembly line
- focus on the needs of society
- trust government
- guilty pleas (90% of all cases are resolved with this)
assembly line in crime control model
- cooperative (courtroom workgroup)
- still doing their jobs but cooperate more
Article I, Article II, Article III
what articles explain the structure/3 branches of government?
articles of confederation
formed loose union of the 13 original states
constitutional convention
called to revive articles of confederation
Philly (17887)
federalists
- desired stronger central government
- wanted more state power
anti-federalists
- feared centralization of powers
- tried to defeat the new constitution
slavery
____ is not mentioned anywhere is the constitution
- influenced the shape of the county and constitution
compromises; divided power
constitution was a product of ___ and ___ ____ among the branches of government (separation of power)
1. not really necessary
2. future government may say these are the only rights that were found
(feds. said we dont need them; anti-feds said may be too powerful and infraction of freedom of speech)
why were the original Bill of Rights not found in the constitution?
article I
- legislative branch (congress)
- most powerful/longest
- law-making branch and most accountable
- house of reps and senate
bicameral Congress
- two houses (house of reps and senate)
house of representatives
- representation based on population (PA = 17)
- every stat is guaranteed at least 1 rep
- 435 representatives
- speaker of the house
- at least 25 years old
- 7 years as American citizen
- resident of his/her district
- 2 year term (no term limits)
what is the eligibility for the House of Representatives and year term?
Speaker of the House
- second in line for presidency (vice president)
- Mike Johnson
- controls agenda, who's going to be on the community, what laws are "offered"
senate
- equal representation for all states (2 per state)
- 100 total
- an advantage for Republicans (red states are more in the middle)
- The vice president casts the deciding vote when there is a tie
- president pro tempore
- only voted on by the people in your district
- must be at least 30 years old
- 9 years an American citizen
- resident of his/her state
- 6 year term (no term limits; longest term)
what is the eligibility and term for the senate?
president pro tempore
a high-ranking senator of the majority party who presides over the US Senate in the absence of the vice president
- 3rd in line for presidency
- sole power of impeachment
- power to bring impeachment to trial
- origin of all bills to raise revenue
- override Presidential veto (has to pass same bill as senate)
major powers of the house of representatives?
- power to try impeachments (Supreme Court Chief Justice will preside over impeachments)
-advice and consent (approve officers and judges nominated by president) (treaties)
- override Presidential veto (has to pass same bill as house of reps)
major powers of the senate?
2/3rds vote
Even if a President vetoes a bill from Congress, how can Congress still pass that law?
article II
Executive Branch (President)
- enforces laws
- electoral college
- commander-in-chief of the military
- negotiate treaties
- nominates officers and judges
- pardons and reprieves
- vetoes
- must be at least 35 years old
- native-born american
- 14 years a resident in US
- 4 year term (10 years max)
what is the eligibility and term for the president?
article III
- judicial branch
- Supreme Court (any inferior courts created by Congress)
- original and appellate jurisdiction
- cases of controversies
- arising under federal law
1; 13; 94
____ US Supreme Courts
____ Circuit Court of Appeals
____ 94 District Court
amendment
- any change in the Constitution
- proposal: 2/3s of both houses/state legislature
supremacy clause
Constitution is the supreme law of the land
full faith and credit clause
Constitution's requirement that each state accept the public acts, records, and judicial proceedings of every other state
- states are obligated to recognize the legitimate actions of other states
fugitive slave clause
slaves who escaped to other states must be returned to their owners
3/5ths clause
the clause that stated that slaves counted as 3/5 of a person when speaking of state population for representation
13th amendment
- abolished slavery
- first time slavery is mentioned in the consitution
electoral college
x party could win the popular vote, BUT y party won _____ (presidency vote)
- flyer/swing states matter
unconstitutional
(pre-Marbury v. Madison)
the constitution does not say if the federal courts have the power to declare an act of congress _____
Federalists Papers
the _____ contain suggestions that the courts do have such power (declaring an act of congress unconstitutional)
john adams
- 2nd president (one of leading founding fathers)
- pre MvM
john marshall
- secretary of state under Adams
- US Supreme Court Chief Justice (also while serving under secretary of state)
william marbury
- federalist (least consequential)
- created Midnight Judges
- didn't get commission to become a DC Justice of Peace from Marshall
midnight judges
- lower level positions (judicial post)
- Marbury
- 16 circuit court judges and 42 justices of the peace were commissioned the night before Jefferson took office
thomas jefferson
- 3rd president
- doesn't get along with adams
- democrat
james madison
- secretary of state under Jefferson
- replaced Marshall
- finds the commission that adams assigned that Marshall never delivered
true
t/f
First transfer of presidential power from one party to another
Federalists (adams) --> Democrats (Jefferson)
writ of mandamus
marbury asked the supreme court to issue a _____ so the court would turn the commission over
writ of mandamus
court order directing a party to perform a certain action
some legal issues that impacted Marbury v. Madison
- Does Marbury have a right to his commission? (Did the President sign while Marbury was in Commission?)
- Does the Supreme Court have the authority to order the President to obey the law? (Marshall created the whole problem, and has to decide)
- Does the Supreme Court have the authority to declare an act of Congress unconstitutional?
Marbury v. Madison
This case establishes the Supreme Court's power of Judicial Review
judicial review
review by the US Supreme Court of the constitutional validity (unconstitutional/constitutional)of a legislative act.
Jurisdiction; consitutional
in the ruling of Marbury v. Madison, congress violated Article III by giving the Supreme Court original _____ over Writs of Mandamus (court ruled it was ______)
