Course questions - Legal English L3-S1

What happened in 1607 ?

Founding of Jamestown, the first English colony in the US

What happened in 1776 ?

Declaration of Independence

What happened in 1788 ?

US Constitution 

What happened in 1791 ?

Bill of Rights

What is the Bill of Rights?

The first ten Amendments to the Constitution of the United States

Purpose of the U.S. Constitution + use of the Bill of Rights

-Initially meant to protect the rights of the states and the people from unwanted federal power and intrusion.

-Protect individual rights and freedoms from the central government, guaranteeing that the US stays a democracy

→ would not have been ratified without the promise of a Bill of Rights

Why is the Bill of Rights in the form of amendments rather than laws?

-Laws can be repealed by a 50% + 1 majority in Congress

-Amendments can only be repealed by adopting another amendment (2/3 majority in each house of Congress and 3⁄4 of the states).

Difference between procedural and substantive rights

-Substantive rights: rights and obligations to be respected

-Procedural rights: rules which determine what happens in civil and criminal proceedings, how substantive laws are enforced

Dates of the US Civil War

1861-1865

What happened in 1865 ? 

-End of the Civil War
-Congress ratifies the 13th Amendment, ending slavery

When have the 13th and the 14th Amendment been ratified by Congress ?

-13th Amendment : 1865

-14th Amendment : 1868

What has the 14th Amendment succeeded in and failed to do ?

-Success in preventing the re-establishment of slavery

-Failure to end racial discrimination

Dates of the period of Reconstruction

1856-1877

What happened during the 1870s ?

Southern Democrats took power and began using voter suppression tactics (poll taxes, literacy tests, etc) against Black voters.

Elements of characterisation of the Jim Crow Era

-Segregation
-State condoned violence by white supremacist groups (e.g. Ku Klux Klan), including lynching

When did legalised racial segregation end ? With what ?

With the Civil Rights Act of 1964, protecting other fundamental rights

Initial applicability of the Bill of Rights

Originally : only applied to the federal government

What are the different ways to tackle incorporation of the Bill of Rights ?

-Total incorporation : “Liberty” in the Due Process Clause is shorthand for the Bill of Rights and the entire Bill of Rights should be incorporated against the states.

-Selective incorporation : selected provisions of the Bill of Rights are made applicable to the states via an interpretation of the 14th Amendment’s Due Process Clause.

Has the SCOTUS chosen total or selective incorporation of the Bill of Rights ?

Selective incorporation, so the Supreme Court decides which provisions of the Bill of Rights will apply to the states on a case-by-case basis

Which amendments have been incorporated against the states ?

1st , 2nd, 4th ,6th, most of the 5th, potentially all of the 8th 

Origin of the notion of Due Process

Echoes clause 39 of the Magna Carta (1215) and is connected with concepts such as “natural justice” or “the rule of law”

Clause 39 : No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.

Tools provided by the Due Process Clause of the 14th Amendment

•  The vehicle to incorporate the Bill of Rights

•  Protection against vague laws (Vagueness Doctrine)

•  Procedural due process Rights

• Substantive due process Rights

What is procedural due process + examples

Principle required by the Constitution that when the state or federal government acts in such a way that deprives a citizen of a life, liberty, or property interest, the person must first be given notice and the opportunity to be heard

Ex: right to counsel, to present evidence and call witnesses at a trial, cross-examine witnesses

What is substantive due process

The idea that due process not only concerns legal procedures, but also protects certain rights unrelated to procedure, when the SCOTUS has determined that a right is deemed so fundamental that any attempt by the government to interfere with it would face strict scrutiny.

What is strict scrutiny + conditions for it to apply + examples of laws that face it

A form of judicial review which courts use to protect rights that they deem to be fundamental.

To face and fulfill strict scrutiny the legislature must have passed a law : 

-That regards a protected liberty and imposes undue burden on it, but :  
-Which furthers a “compelling governmental interest”
-Is narrowly tailored to achieve it legitimate aim
-Is the least restrictive means of achieving that aim

Examples of laws facing it : law discriminating on the basis of race, laws concerning freedom of religion or speech

Hierarchy of the scrutiny of the SCOTUS when examining a law

-Strict scrutiny : highest level 
-Intermediate scrutiny
-Rational basis review

What about the acceptation of procedural/substantial due process ?

-Procedural : generally accepted by the courts

-Substantive : usually controversial and depend on the makeup of the court, which may apply it to protected various constitutional rights

Type of political majority in the SCOTUS currently

Conservative

What is a liberal ?

In politics, someone who generally supports reform and progressive policies, advocates for civil liberties, human rights, and democracy, and often emphasizes the need for government intervention in economic affairs to address social inequalities.

What is conservatism ?

A political ideology or individual who typically emphasizes preserving traditional values, limited government intervention in the economy, personal responsibility, and maintaining established institutions

Current tendency of the SCOTUS regarding substantive due process

Aligned with Justice Clarence Thomas’ criticism of it : “the Fourteenth Amendment's Due Process Clause is not a secret repository of substantive guarantees against unfairness.”

Definition of a concurring opinion

An opinion by one or more judges/justices who reach the same conclusion as the majority of the court but use a different legal reasoning

Definition of a majority opinion

The opinion joined by the majority of the court, explained in a lengthy piece of writing. Generally called simply “the opinion.”

Definition of a dissenting opinion

An opinion which lays out the reasons why, in the justice’s opinion, the court’s opinion is mistaken. Other justices may join in a justice’s dissent.

Two categories of rights protected by the 1st Amendment

-Freedom of speech
-Religious freedom

Rights protected under the category “freedom of speech” of the 1st Amendment

-Freedom of speech
-Freedom of the press
-Freedom of assembly
-Right to petition
-Freedom of association

Rights protected under the category “religious freedom” of the 1st Amendment

-Freedom of religion
-Freedom from religion

Is freedom of speech incorporated to the states ?

Yes, through the 14th Amendment

What is the context and reasons to adopt the 1st Amendment (esp. freedom of speech) ?

-Context : wanting to avoid people to be punished for seditious libel (which is a crime in English Common Law)

-Justifications :

• Marketplace of ideas : necessity of open debate to identify true ideas

• Self-government theory : ability to criticise and question the government

• Self-realisation theory : allows achieving autonomy and personal fulfillment

Particularity of hate speech in the US

It is protected under free speech

To whom does the 1st Amendment NOT apply ?

The private sector

Opinion of liberal and conservative justices regarding the protection of hate speech

Though some disagree, hate speech is generally as protected as other forms of speech by BOTH.

What does free speech include (apart from hate speech) ?

• Compelled speech: You can’t be forced to express an idea you disagree with

• Prior restraint on speech: Usually the government cannot prevent speech from occurring, although it may be punished after the fact

• Expressive conduct: Burning an American flag for example

• Symbolic speech: Ex. wearing a black armband to protest a war

Limits to the protection of free speech

Low value speech, which can be :

• Fighting words

• True threats

• Obscenity

• Advocacy of illegal conduct
  

→ are ineligible for protection, but this is very restricted

What are “fighting words ” ?

-Words intentionally directed toward another person which are so offensive as to cause the hearer to suffer emotional distress or incite him/her to immediately retaliate physically.

What are “true threats” ?

Statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.

What is “obscenity” ?

The state of being offensive to accepted standards of decency and advocacy of illegal conduct.

What about defamation and commercial speech in relation to 1st Amendment protection ?

They have considerable protection under the 1st Amendment (but it has not always been the case)

What is defamation ?

A tort that imposes liability for making false and derogatory statements that injure someone’s reputation.

What about the court’s scrutiny of the regulation of free speech ?

-Must face strict scrutiny

-Time, place and manner of expression may be restricted when the restrictions are content-neutral, but otherwise content-based regulation is usually unconstitutional

Where and to whom has the government increased regulatory power of free speech ?

In schools, the military, prisons and over public employees

Is there a difference between the freedom of the press and free speech of citizens ?

The press generally enjoys the same rights of free speech as citizens.

What is the right to petition ?

The right to request government action (petitioning, lobbying, demonstrations) and to file lawsuits against it

What is the difference between the right to assemble and the freedom of expressive association ?

-The right to assemble allows people to gather for peaceful and lawful purposes.

-The freedom of expressive association (implicitly protected by the 1st Amendment an incorporated against the states) is the freedom to gather with others and discuss matters of common concern or communicate ideas to a wider public. 

Why was religious freedom so important to the Founding Fathers ?

Many settlers in what became the US fled England because of religious persecution

Quote of the 1st Amendment that are the Establishment Clause and the Free Exercise Clause

-Establishment Clause ‘‘Congress shall make no law respecting an establishment of religion’’

-Free Exercise Clause ‘‘or prohibiting the free exercise thereof’’ 

What is the purpose of the Establishment Clause

Freedom from religion, preventing the government from : 

-Adopting an official state religion
-Favouring one religion over another
-Favouring religion over non-religion
-Favouring non-religion over religion

Why is the freedom from religion different from the French laïcité ?

US institutions often presuppose a Supreme Being (cf. Zorach v Clauson (1951))

Ex. Many government officials place their hand on a bible when they take their oath of office. Some choose not to place their hand on anything. 

Representative Rashida Tlaib, the first Muslim woman elected to the House of Representatives, placed her hand on a Quran when she took her oath.

What is originalism ?

In Constitutional law, the Constitution should be interpreted as the Founding Fathers originally intended.

What is the evolution of the interpretation of the Establishment Clause ?

-Creation of the “Lemon Test” in Lemon v. Kurtzman (1971)

-SCOTUS explicitly abandons it in American Legion et al v. American Humanist Association (2017)

-Now : no new test, but the analysis must be sensitive to original intent, historical practice and factual context, with heightened scrutiny in schools

What is the “Lemon test” ?

Comes from Lemon v Kurtzman (1971)

The law violated the Establishment clause if, cumulatively : 

-It did not have a legitimate secular purpose
-Its primary effect was to advance or inhibit religion
-It created an excessive entanglement with religion

(test abandoned in 2019)

What about the interpretation of the Establishment Clause regarding schools ?

Even though the Court upheld opening prayers in the Nebraska legislature in Marsh, it has not allowed opening prayers in public school.

→ It has argued that heightened scrutiny is necessary in schools because of the psychological development of children.

What is the Free Exercise Clause often associated with ?

With personal freedom of conscience

What separation is necessary regarding the Free Exercise Clause, and why ?

-Separation between religiously motivated belief/action

-Without it : the Free Exercise Clause would effectively allow any citizen to do whatever she/he wanted with the justification of religious exercise

What law was passed regarding governmental regulation of the exercise of religion + criteria

The Religious Freedom Restoration Act (RFRA) of 1993

Government action may only “substantially burden a person’s exercise of religion” when the two following criteria are satisfied : 

-The government action “is in furtherance of a compelling governmental interest”

-The government action “is the least restrictive means of furthering that compelling government interest”

Application of RFRA depending on the scale

-For Free Exercise issues involving federal action: RFRA (a federal statute) applies but remains subordinate to the First Amendment (a constitutional provision)

-For Free Exercise issues involving state or municipal action: The Court entertains issues arising under its own First Amendment caselaw but does not entertain issues arising under the RFRA

What is an arrest ?

A person is taken into police custody

What is custody ?

Control over a suspect by authorities

What amendments can apply during arrest and custody + have these amendments been incorporated (+ consequence of that) ?

-4th, 5th and 6th Amendments

-They have been incorporated, so they don’t only apply to federal arrest and custody, but also to state arrests

Which amendments are contained in the Miranda Rights + what is the speech exposing Miranda Rights ?

-5th and 6th Amendments

-”You have the right to remain silent.
Anything you say can and will be used against you in a court of law.
You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.
Do you understand the rights I have just read to you?
With these rights in mind, do you wish to speak to me?”

What is the exclusionary rule in relation to Miranda rights ?

Any un-Mirandized statement will be excluded from evidence at a trial.

BUT non-testimonial and physical evidence gathered as the result of un-Mirandized statements (weapons, blood, fingerprints, cell phone record, etc) can be used in court

Exceptions to the obligation to mirandise a suspect

-The “public safety exception” when circumstances present a clear and present danger to the public’s safety and when officers have reason to believe that the suspect has information that can end the emergency (often in terrorism cases)

-No Miranda Rights protection when a jailed suspect confesses under deception to a police officer

-Refusal to answer a question can be presented as evidence, even if the interrogation happened before the suspect was arrested or mirandized

What is self-incrimination + which amendment protects the suspect against doing it ?

The act of exposing oneself to criminal prosecution

Protected against by the 5th Amendment

What is the current movement regarding Miranda Rights ?

Movement for a broader application of Miranda Rights with more protection against self-incrimination (ex : Miranda warnings accessible in more languages)

What is frisk + other name of the stop and frisk ?

-Search a person for weapons by patting down their outer garments. They may not put their hands inside of pockets or clothes.

-A stop and frisk is also called a “Terry stop”

Lawful conditions for a stop and frisk

-The police may rely on information from an anonymous informant, but they must find other corroborating facts before conducting a terry stop

-They may only seize objects whose “mass and contour” could match that of a weapon

-Unprovoked flight of a suspect can justify a stop

-There is no set limit of time during which the suspect can be stopped, but length of stop must be proportionate to the purpose and time needed

-Officers must have a “reasonable suspicion”, more than a hunch

What is reasonable suspicion ?

It’s a lower legal standard than probable cause, that has to be more than a hunch

What is the exclusionary rule in relation to searches during a stop and frisk ?

Under the exclusionary rule any evidence discovered by police in an illegal stop and frisk will be excluded at trial

What is the fruit of the poisonous tree doctrine ?

A doctrine that evidence obtained as the result of an unlawful search is inadmissible, even if the evidence is itself obtained lawfully.

[This does NOT apply to evidence obtained from unconstitutional (un-Mirandized) interrogations]

What is the general opinion about stop and frisks + why ?

-Stop and frisks have been very controversial : claims say that it violated Equal Protection Clause

-Tendency of racial profiling from the police

-Stop and frisk can be quite traumatic for the suspect

What is racial profiling ?

Discriminatory practice by law enforcement officials of targeting individuals for suspicion of crime based on the individual’s race, ethnicity, religion or national origin.

What are the exceptions to the warrant requirement + Amendment establishing the warrant requirement ?

4th Amendment requires a warrant issued upon probable cause to conduct a search, but there are exceptions :

-Searches incident to a lawful arrest: officers can search the person and the immediate area

-Stop and frisks

-Exigent circumstances: Officers are entitled to conduct searches and seizures where they have reasonable grounds to believe that such action is necessary to protect lives or property

-Plain view: officers may legally seize objects that are in plain view if they are lawfully present have probable cause to believe that they are contraband

-Checkpoints: certain types of checkpoints may detain people briefly

-Consent: if a person consents to a search

What is the next step after a suspect has been arrested and placed in custody ?

A first appearance in court

What is a suspect ?

Someone who is thought to have committed a crime.

What is the First/initial appearance ?

Hearing at which a defendant is brought before a judge to hear the charges against them and enter a plea.

When must a first/initial appearance occur ?

-If the arrest was made with a warrant : “without necessary delay”

-Warantless arrest : within 48 hours of the arrest to determine whether it was justified by probable cause

What happens if probable cause is not established to justify a warrantless arrest ?

The arrestee will be released without charges

What will the judge do at the initial appearance ?

1. Inform the suspect of their rights (right against self-incrimination, right to a lawyer)

2. Set a date for the preliminary hearing (first court proceeding in a criminal charge where the judge decides, using probable cause, whether there is enough evidence for the case to proceed)

3. If the judge deems that there is probable cause s/he will decide whether to set bail or, in the case of less serious crimes, to let the suspect go on their own recognizance (their promise that they will return to court for the trial)

What is the federal definition of an infraction + examples ?

Least serious type of crime - jail sentence of not more than 5 days

Ex. Traffic tickets, littering, disturbing the peace

What is the federal definition of a misdemeanor + examples ?

A lesser crime punishable by a fine and/or county jail time for up to one year (federal definition).

Ex: petty theft, disturbing the peace, traffic violations.

What is the federal definition of a felony + examples ?

A more serious crime with a punishment of more than one year in jail.

Ex: murder, rape, arson.

What does the 8th Amendment say + what about its incorporation ?

-Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
→ forbids excessive bail

-But not clear whether it’s incorporated or not

What is bail ?

Money or property given as security for a defendant’s appearance in court. When bail is posted, the defendant is released to await their trial. The bail will be refunded if the defendant shows up for their trial or forfeited if they do not.

What happens if the defendant can’t afford to post their own bail ?

-They can get a surety bond from a bondsperson. They will usually have to pay the bondsperson 10 % of the total amount set by the court and will not recover this 10 %.

-They can also pledge their property, car etc as collateral* for a property bond.

*Collateral : property pledged by the borrower to protect the interests of the lender.

What is a surety bond ?

A guarantee issued by a surety agency on behalf of a client, requiring the agency to pay a sum of money to the court in the event the defendant fails to show up for their trial

What is a bondsperson ?

Person who provides bond or surety for another. It is in their interest for the defendant to show up at their trial so they may impose additional requirements or resort to bounty hunters to track the defendant down. They may also revoke a bond if they think the client/defendant is going to skip bail and surrender them back to jail.

What about the judges actions regarding bail ?

-In cases involving capital or very violent offenses the judge will deny bail.

-Judges have great discretion in bail decisions, and it is not clear whether the 8th Amendment’s clause on excessive bail has been incorporated.

What is the drawback of the bail system + consequence

-Often it is the poorest defendants who remain in jail as they wait for a trial and not just the most dangerous ones.

-Many states are implementing bail reform measures.

What happens after the initial Appearance ?

Preliminary Hearing in which the judge decides if there is enough evidence to charge the suspect

(BUT the defendant can choose to waive it)

What is a defendant ?

A person accused of a crime