Legal 101 Midterm

Law vs. Legality

Law refers to formal written statutes, court systems, and legal institutions; legality refers to the cultural meanings, interpretive frames, and everyday social practices through which citizens invoke, make sense of, or resist law in daily life.

Before the Law (Frame 1)

Ewick & Silbey's frame where law is viewed as a majestic, objective, impartial, and distant realm of authoritative rules. Empowers by protecting from local coercion; disempowers by making individuals feel small before bureaucracy.

With the Law (Frame 2)

Ewick & Silbey's frame where law is treated as a strategic game/arena of resources, tactics, and skill where pre-existing rules are deployed for self-interest. Acknowledges that the 'haves come out ahead'.

Against the Law (Frame 3)

Ewick & Silbey's frame where law is experienced as an arbitrary, oppressive, and coercive power trap. Powerless individuals resist through 'make-do' tactics, foot-dragging, masquerade, and making scenes to subvert authority.

Intersectionality in Legal Consciousness

The concept that overlapping social identities (race, class, gender) shape how individuals experience legal institutions, access legal resources, and face institutional bias or coercion.

Natural Law Theory

Philosophy asserting that the validity of human law depends on its conformity with a higher moral order, divine law, or universal reason. Core principle: Lex iniusta non est lex (an unjust law is no law at all).

St. Thomas Aquinas on Law

Traditional natural law view holding that human law derives from divine/eternal law. Any human law that strays from human reason or degrades human personality is a perversion of law.

John Locke's Natural Rights

Theory that individuals possess pre-political natural rights to life, liberty, and property. Government legitimacy rests on a social contract to protect these rights.

MLK's Just vs. Unjust Law

From Letter from Birmingham Jail: A just law squares with moral law and uplifts human personality. An unjust law degrades human personality (like segregation), or is imposed by a majority on a minority denied the right to vote.

MLK's Civil Disobedience

Breaking an unjust law openly, lovingly, and with a willingness to accept the penalty to arouse the community's conscience expresses the highest respect for law.

Lon Fuller's Inner Morality of Law

Modern procedural natural law (King Rex allegory) identifying 8 ways lawmaking can fail: (1) Ad hoc decisions, (2) Lack of publicity, (3) Retroactive laws, (4) Obscurity, (5) Contradictions, (6) Impossibility, (7) Constant change, (8) Incongruence between rules and administration.

Nazi Grudge Informant Problem (Natural Law Solution)

Under natural law, monstrous Nazi statutes were morally void ab initio (invalid law); therefore, informers who used wicked laws to eliminate personal enemies can be lawfully prosecuted.

Legal Positivism

Philosophy holding that law is a human social creation ('posited') distinct from morality. Legal validity depends on formal procedural enactment by proper authority, not on moral content.

John Austin's Command Theory

Defined law as the uncommanded sovereign's general commands backed by threats of sanction, habitually obeyed by subjects (critiqued as a glorified 'gunman situation').

H.L.A. Hart's Concept of Law

Defines law as the Union of Primary and Secondary Rules. Rejects command theory and distinguishes between the internal point of view (accepting rules as standards) and external point of view (observing/predicting sanctions).

Hart's Primary Rules

Direct rules that impose duties or obligations on individuals (e.g., criminal prohibitions against violence, theft, or murder).

Hart's Secondary Rules

Rules 'about' primary rules that cure primitive social defects: (1) Rule of Recognition (cures uncertainty), (2) Rule of Change (cures static rules), and (3) Rule of Adjudication (cures inefficiency).

Hart's Rule of Recognition

A secondary rule that provides official, authoritative criteria for identifying which primary rules are legally valid (e.g., written constitutions or legislative enactments).

Core of Certainty vs. Penumbra of Doubt

Hart's distinction: Core = standard, clear cases where statutory terms plainly apply; Penumbra = borderline, open-textured cases where terms are ambiguous and judges must exercise judicial discretion.

Nazi Grudge Informant Problem (Positivist Solution)

Under positivism, Nazi laws were formally valid laws at the time. To punish informers, society must pass an explicit retroactive statute (accepting the moral trade-off) rather than falsely pretending Nazi laws were invalid.

Enumerated vs. Implied Powers

Enumerated = powers explicitly granted to federal Congress in Article I of the Constitution (tax, spend, regulate commerce); Implied = powers reasonably inferred as 'necessary and proper' to carry out enumerated duties.

Supremacy Clause

Article VI of the U.S. Constitution establishing that federal law overrides conflicting state laws when acting within constitutional authority.

Preemption (State & Federal)

Occurs when a higher level of government prohibits a lower level from legislating. Federal preemption overrides state laws (e.g., Voting Rights Act); State preemption occurs when red state legislatures block blue cities from setting minimum wage, paid leave, or plastic bag bans (Badger).

Administrative Agencies (The 'Fourth Branch')

Government authorities created by legislative enabling acts to regulate complex technical fields requiring continuous oversight, flexibility, and expertise (Vago).

Executive vs. Independent Agencies

Executive = agencies under direct presidential control whose heads serve at-will (e.g., DHS, EPA); Independent = multi-member bipartisan boards with fixed/staggered terms protected from immediate presidential removal (e.g., SEC, FCC, Federal Reserve).

Agency Rulemaking & Notice-and-Comment

Quasi-legislative process under the Administrative Procedure Act (APA) requiring agencies to publish proposed rules, receive public comment, and engage in reasoned decision-making.

Arbitrary and Capricious Standard

APA judicial review standard under which courts strike down agency actions if the agency failed to provide reasoned explanations or ignored alternatives (e.g., SCOTUS striking Trump's DACA rescission in Rudalevige).

Trial Courts vs. Appellate Courts

Trial courts (e.g., District Courts) conduct fact-finding, evaluate evidence/witnesses, and issue initial verdicts; Appellate courts (e.g., Circuit Courts) review questions of law and procedure without retrying facts.

Civil vs. Criminal Cases

Civil = private disputes over rights/liabilities (preponderance of evidence); Criminal = state prosecution for offenses against society (proof beyond a reasonable doubt).

Standing

Constitutional requirement that a plaintiff must demonstrate a direct, concrete, and actual injury-in-fact to bring a lawsuit in court.

Umpire vs. Activist Judge

Umpire = view that judges should act as neutral referees applying existing rules; Activist = view that judges should use judicial power broadly to advance social justice or shape policy.

Originalism vs. Living Document

Originalism = interpreting the Constitution according to its original public meaning at the time of adoption; Living Document = interpreting the Constitution dynamically to adapt to changing societal values.

Judicial Independence vs. Accountability

Institutional trade-off: Protecting judges from political pressure/retaliation (independence) vs. ensuring judges remain responsive to democratic public values (accountability).

State Judicial Selection Methods

(1) Gubernatorial Appointment, (2) Legislative Election, (3) Partisan Election, (4) Nonpartisan Election, (5) Missouri Plan / Merit Selection (nominating commission $\rightarrow$ governor appoints $\rightarrow$ non-competitive retention election).

Supreme Court Term Limits Proposal

Proposal to replace life tenure with staggered 18-year term limits (one vacancy every 2 years) to reduce partisan confirmation conflicts and align the U.S. with other democracies (Colin & Ward).

Common Law & Stare Decisis

Common Law = legal system built on judicial precedents; Stare Decisis = 'let the decision stand'—the principle that courts must follow established precedents in similar cases to ensure predictability.

Legal Formalism

Traditional view that law is a complete, logical system where judges mechanically apply clear rules to facts via syllogistic deduction without personal bias.

Legal Realism

Critique of formalism arguing that law is indeterminate; judges decide cases backward based on 'hunches' or desired outcomes and afterwards find legal rules to justify their conclusion (Frank, Llewellyn).

Llewellyn's Janus-Faced Precedent

Precedent has two contradictory techniques: Strict View ('surgeon's knife') = narrowing unwelcome precedents by confining them strictly to their specific facts; Loose View ('springboard') = expanding welcome precedents by treating dictum broadly.

Extra-Legal Influences on Judges

Non-legal factors influencing judicial decisions, including judges' personal demographics, life experiences, psychological biases/hunches (Frank), political ideology, and strategic calculations (Sarat & Felstiner, Novkov).

Petit Jury vs. Grand Jury

Petit Jury = trial jury (6-12 members) deciding guilt or civil liability; Grand Jury = investigative panel determining whether probable cause exists to issue a criminal indictment.

Constitutional Amendments for Juries

6th Amendment guarantees a speedy and public trial by an impartial jury in criminal cases; 7th Amendment guarantees a jury trial in federal civil disputes.

Voir Dire

The jury selection process where judges and attorneys question prospective jurors to uncover bias and exercise challenges (for cause or peremptory).

Jury Nullification

The power of a trial jury to acquit a criminal defendant despite clear evidence of guilt because the jury believes the law itself is morally unjust or unfairly applied.