Nature of Law & Legal Reasoning

Jurisprudence:

Study of legal philosophy

Major philosophical conceptions of law:

Natural law, positivist, historical, sociological, realist, critical, economic, and feminist jurisprudence.

Natural Law:

Thinks law is ordained by nature. Law consists of a body of higher principles existing independently of human experience, and existence is inherent to human nature. DEFINED BY MORALITY AND NOT BY ANY RULER.

Positivist:

Regards law as any body of rules imposed by a sovereign or sovereign body.

Most people think of law as a ________

body or rules.

Positive law:

Law laid down to by the duly constitued authority

_______ regarded the Fugitive Slave Act as law even though it was immoral.

Positivists

________ did NOT regard the Fugitive Slave Act as law because it was immoral.

Natural Law Theorists

Historical:

Defines law as the embodiment of a society’s customs. Uses past laws to help create the current laws.

Sociological:

Closely associated with the historical view, define law in present human conduct. Under this approach, formal law should reflect present human conduct. Focuses more on IMMEDIATE experience. Law changes to account for current needs

Realist:

Looks beyond logic and reasoning and examines what actually occurs in the legal process. If the speed limit is 55 but won’t get pulled over unless you’re doing 10 over, then a realist would say the law is 65.

Critical:

Type of legal realism. States that law is the product of political and sociological judgements made by judges. Believe that judges make law in such a way to preserve the existing political and economic order

Economic:

Affirms a link between law and economic activity. Contends that good law reflects good economics. Sees law as an instrument by which efficient economic outcomes are acheived.

Those belonging to the law and _______ school turn to the study of economics in the belief that it can provide a stable basis for legal decisions.

economics

Feminist jurisprudence:

based on the idea that law has historically contributed to the subordination of women. It also assumes that the law is influenced by patriarchy, a system of institutions and relationships that oppress women.

Which branch makes law?

All of them

What is the fourth branch of government?

Administrative agencies

Legislature

Organized body of persons having the authority to make laws for a political unit (Congress)

What makes up the sources of law?

Legislative, Judicial, Executive, and Adminstrative Agencies.

Laws created by a LEGISLATIVE body are called:

Statutes, enactments, ordinances, acts, legislation, or written law.

Legislation:

Refers to either the process by which a statute is enacted or the stature itself.

First step in enacting a statute?

Begins as a bill introduced to the House or Senate

Second step in enacting a statute?

Referred to a committee, where they typically die from inaction.

Final step in enacting a statute?

Send the bill to the floor of the house of Congress where it was introduced. Following a debate, the bill is voted on.

Where does a bill that passed both the house and the senate go?

To the president for signature.

How to override a presidential veto?

Need 2/3 vote in both house and senate.

Executive branch makes law by _______

executive orders.

What makes up the executive branch?

The president, the cabinet, and the agencies and bureaus operating under the president’s authority.

The constitution gives the president _____ authority to make law in foreign and domestic affairs.

limited

The presidents ability to make law regarding foreign affairs derives from the presidential power to make ______

treaties.

Treaties determine:

The type and quantity of goods that may be sold in foreign markets.

Presidential power to make law has been _______ by the Supreme Court’s interpretation of the Constitution

limited

When a court decides a dispute, it makes ______

law.

Judge made law is referred to as:

Common law.

Administrative agencies have the power to affect the rights of _________

private parties.

Administrative agencies are housed in the executive branch but are created in the _________

legislative branch.

Because courts explain their decisions in written opinions, we turn to court opinions for examples of _____ _______.

legal reasoning

Doctrine of stare decisis:

Policy that courts have developed as a general rule; past judicial decisions are applied to decide present controversies.

A rule of law decided by the highest court of a jurisdiction binds all ______ courts within the jurisdiction.

lower

Stare decisis does not apply to other jurisdictions, but

they may find its reasoning persuasive and follow it when considering similar cases.(California supreme court is not bound by the decisions of Pennsylvania supreme court but may adopt their reasonings if they like it)

Bases that underlie the doctrine of stare decisis:

Fairness and predictability.

A court decision today will be tomorrows ______.

precedent

A court often considers the _____ effect of a decision

future.

Phrases said in a trial that is not necessary for the decision of the case but are still significant

obiter dictum.

Formalist reasoning:

Takes the words in a case or statute out of context and defines them without taking into account their purpose. (take what is written and don’t go any farther)

Purposive reasoning:

Attempts to define the meaning of words in a case or statute by ascertaining the purpose underlying them.

Knick vs Township of Scott:

Overthrew the takings clause. Overruled Williamson County and went in favor of Knick. Ordered that the government must pay compensation at that moment or in advance.

Precedent-based rationale:

Involve the basic question of whether an earlier decision applies to the present case.

Where the language is clear, the court does not go beyond the plain meaning of its words to determine what a statute means:

Plain meaning rule

Abramski vs United States:

Made straw purchases for guns against the law. The dissenting opinion used the plain meaning rule to come to their conclusion that this in fact not a straw purchase as this person was the person who bought the gun.