law 1010 final

law

the set of rules established by government that it requires everyone to obey or risk punishment for not obeying, seeks to draw the line between what is deemed acceptable and what is unacceptable within a society. no one “correct” definition

goldstein

law needs to discourage “cheating” in society, reinforce cultural norms, fill in gaps where religion is insufficient to ensure morality, and reinforce evolutionary developed social structures that support society

legal system

the process of making, enforcing, and adjudicating laws. both structure and substance.

types of legal systems

common law, religious law, civil law, customary law, mixed

us legal system

mixed

rule of law

the idea that all people, institutions, and entities are accountable to public, equally enforced laws

purpose of creating a legal system premised on the rule of law

protect against anarchy, create predictability in society, guarantee against governmental arbitrariness

characteristics of modern law weber

codified, applying equally and fairly to all, impersonal, formally rational

federal

supreme law under the US constitution

three branches of government

legislative, executive, judicial

functions of the US constitution

creates a structure of government, divides powers among the branches of government, divides powers between the federal government and the states, assures individual rights and liberties

purpose of the US constitution’s separation of powers

to limit the authority of any individual branch of government and to limit the authority of the government generally

majoritarian branches of government

congress and the president

counter-majoritarian branches of government

the judiciary

due process amendments

five and fourteen

best understood principle of constitutional law among citizens

the right to bear firearms

least understood principle of constitutional law among citizens

primary business of the US supreme court

informal shifts

process the US has accepted for altering the constitution’s meaning without approving a formal amendment to the document

federal

governmental system the US uses

enumerated

type of lawmaking power that the US constitution gives congress

18

how many types of lawmaking powers does the us constitution give congress

alexander hamilton

wrote 51/85 federalist papers

one

article of the constitution that governs congress

james madison federalist papers

“the powers delegated by the…constitution to the federal government are few and defined. those which are to remain in the state governments are numerous and indefinite.”

bicameral

us congress having two chambers makes it

required for a federal bill to become law

approval by the president, senate, and house of representatives

bill becomes law

both chambers of congress approve a bill, send it to the president, president fails to sign the bill for 10 days while congress is still in session

one

how many courts does the us constitution create

congress may hold hearings and supervise the implementation of public policy by the executive branch to

avoid waste, inform the public, for future policymaking purposes, and for political purposes

aim of statutory construction

give effect to the intent of the legislature

textualist interpretation

focuses on the plain text of the statute

intentionalist interpretation

focuses on the specific intent of the statute

purposivist interpretation

focuses on the broad objectives of the statute

intrinsic aids the courts might use to help interpret a statute

long title, headings, preamble, canons of construction

extrinsic aids the courts might use to help interpret a statute

earlier case law, dictionaries, legislative history, senate or house reports

expressio unius canon of construction

if the legislature has included one thing, it has excluded those not stated

noscitur a sociis canon of construction

a word takes its meaning from the words around it

justice stevens advice for construing a statute

read the entire statute, read in its contemporary context, consult legislative history if you think it will shed light on the matter

judicial review

the power of the judiciary to examine and invalidate actions of both the federal and state governments.

purposivism and textualism

two theories of statutory interpretation

originalist method of constitutional interpretation

the constitution has a fixed or settled meaning until it is formally amended, and judges should seek the meaning of the constitution as it was understood at the time of its adoption in 1787

judiciary act of 1789

established the supreme court, mid-level appellate courts, and trial-level courts

purposes of review by federal courts of appeal

filter out cases unworthy of supreme court review and correct errors of law by lower courts

constitution supremacy clause

requires states to be bound by the constitution and federal laws, even if state law is to the contrary

jurisdiction

authority of a court to exercise judicial power in a specific case

subject matter and parties

jurisdiction required over both to hear a case

vertical precedent

lower courts must follow previous decisions of higher courts within their jurisdiction

horizontal precedent undesirable effect

judges may feel constrained to follow decisions they do not agree with

precedent benefits

a court can narrow the issues in a case by treating some matters as settled, and the general public can rely on consistent rules around which to plan their lives

where precedent is found schauer

the written rationale of the decision

new york times co v sullivan libel precedent schauer

court did not limit their description of sullivan to his job title, and the court described the nyt as “the press”

relavant facts to anjour v boston elevated ry co decision

there is evidence of the aged condition of the banana in anjou

sixth amendment protected right

all criminal defendants have the right to be represented by counsel in a speedy and public trial, by an impartial jury

seventh amendment protected right

right to a jury trial in federal civil cases

criticisms of trials by juries

juries are incapable of understanding evidence, and juries are little better than a roll of the dice

plea bargain types and requirements

reduction of charges, deletion of tangent charges, sentence bargaining, reached voluntarily and with the defendant’s comprehension of the terms

defense appeal arguments

evidence was improperly admitted at trial, instructions to the jury were flawed, a guilty plea was not voluntarily made

article two section three of the constitution

the president shall take care that the laws are faithfully executed

take care clause of the constitution

interpreted to cover both the president’s obligation to comply with an execute legislation as enacted by congress and to provide for presidential control over the enforcement of federal law

prosecutorial discrection

provides federal prosecutors with latitude to make investigatory and prosecutorial determinations, including when, against whom, and whether to prosecute particular criminal violations of the law

limits to prosecutorial discretion

race, religion, and arbitrary classifications of the accused, as well as any infringement of individual constitutional rights

youngstown sheet and tube v sawyer

court held that the constitution does not allow the president to take possession of private property in order to keep labor disputes from stopping steel production

administrative procedures act

provides the default procedures that federal agencies must follow in performing its regulatory duties

department of justice subagencies

drug enforcement administration, federal bureau of investigation, and federal bureau of prisons

rulemaking and adjudication activity by federal agencies

involves the agencies implementing rules and regulations that bind the public and bringing enforcement actions against those who violate a statute or regulation

reasons congress would create a federal agency

can collect the necessary expertise in one agency to provide rulemaking for and enforcement of government programs, and congress is free to focus on bigger picture issues rather than on technical details required to fully implement a complex public policy

downsides for congress in creating administrative agencies

federal agency may issue rules in a manner that congress views as inconsistent with its intent, and federal agency employees who write regulations are not directly accountable to to the people

first federal agencies in 1789

departments of foreign affairs, treasury, and war

congress may delegate power to implement and enforce laws to federal agencies if congress has supplies an “intelligble principle”

the applicable statute explains the specific task(s) and authority congress has delegated to the agency

appropriation measure

typically contains limits on the amount of funding available and a specific purpose and duration for which the funding can be used

hearings and investigations

non-statutory tools congress may use to control federal agencies

conduct of public universities is limited by

the first amendment, statutes, and common law

strict scrutiny

the government must show a compelling state interest that is the least restrictive means necessary to address the compelling government interest

second founding of the constitution

what scholars called the passage of the fourteenth amendment

birthright citizenship

overruled dred scott decision

the slaughterhouse cases

US supreme court case that gutted the 14th amendment’s privileges and immunities clause

dred scott v sanford

SC decision held that black americans could never be citizens regardless of whether they were free or enslaved

strict scrutiny

scrutiny type that applies to laws that discriminate against discrete and insular minorities

plessy v ferguson

SC decision that held that separate but equal accommodations between races was consistent with the equal protection clause of the constitution

intermediate scrutiny

type of scrutiny that applies to laws that discriminate based on gender

roe v wade

SC case held that a woman’s right to an abortion is a fundamental right under the due process clause of the constitution

griswold v connecticut

SC case that recognized a married couple’s fundamental constitutional right to obtain and use contraception

controversy of declaring an action a fundamental right

when a right is protected under the constitution, it greatly limits the ability of the people to decide whether to recognize that right

elements of a contract

offer, acceptance, and consideration

tort

wrong

internal law weber

lawyers, idea is to ensure consistency in the law

external law weber

society, idea is to understand the moral or normative underpinings of the law

formally rational weber

what law should be, i.e. impartial, codified, and set by procedures that apply equally and fairly to law

neomarxist/critical theories

law may not reflect social morals, analyze law to critique its effects on race, class, gender, etc.

evolutionary psychology

law is a social adaptation to help humanity perpetuate, seeks to fill gaps where morals and religion cannot, law thus aims to achieve social order by limiting cheating that is too much in one’s self interest

civil legal system

roman corpus juris civilis

common law legal system

biblical influences and other remnants

customary legal system

local/tribal customs and norms

religious legal system

religious texts or commands

mixed legal system

combinations of the above (US: civil and common)

sources of law

constitutions, statutes, ordinances, regulations, court decisions

what law is trying to acheive

justice, rule of law, limited government, majority rule, minority rights, freedom+liberty, equal protection, due process, impartial judiciary

tensions

justice and efficiency, majority rule and minority rights, freedom/liberty and limited government

funcitons of constitution

sets the structure of the federal govt, grants power to different branches, procedures to exercise powers, preserves individual rights, ancillary matters/political compromise

doesn’t necessarily have to be written

what constitutions do

establish government, allocate power among parts of government, preserve rights